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ELRCDismissed· [2014] KEELRC 27 (KLR)

Gregory Mareko & 4 others v National General Secretary Dock Workers Union & 2 others [2014] KEELRC 27 (KLR)

Industrial Court of Kenya
19 December 2014
JRJames Rika
955 words in judgment
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The bottom line

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The Industrial Court refused to reinstate a claim application dismissed for non-prosecution, warning that a refused adjournment means the hearing proceeds with or without you.

What this practically means

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Executive summary

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The Claimants, members of the Dock Workers Union, filed a Statement of Claim on 29th October 2014 seeking to stop their trade union from shifting its affiliation from COTU (K) to TUC, together with an application dated 29th October 2014 seeking to restrain the Union from associating with TUC pending determination of the Claim. At the inter partes hearing on 14th November 2014, the Claimants' application for adjournment was rejected; the Claimants and the advocate holding brief left, and the Court dismissed the application for non-prosecution with costs to the Respondents. The Claimants then filed an application dated 28th November 2014 seeking to set aside those orders and reinstate the dismissed application, relying on Article 59 of the Constitution, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules 2010, supported by an affidavit of Ms. Rajab, who attributed non-attendance to illness and a communication breakdown with the advocate holding her brief. The Respondents opposed through the affidavit of Leonard Rufus Ochieng'. The Court found the extract of proceedings relied on by the Claimants faulty and internally inconsistent, held that refusal of adjournment meant the hearing had to proceed, and found the illness explanation unconvincing since the treatment card pre-dated the hearing. The Court further held the application technically defective for ignoring the Industrial Court (Procedure) Rules 2010. The application was refused with costs in the cause, and the Claimants were directed to prosecute their main Claim.

Key legal issues

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01

Whether the dismissal for non-prosecution of 14th November 2014 should be set aside

Holding

Dismissal upheld; no grounds for reinstatement. The Claimants' advocate walked out after adjournment was refused, and the reasons advanced for reinstatement (advocate's illness) differed from those given on the hearing day and were unsupported, the treatment card pre-dating the hearing.

Reasoning

The Court found the extract of the proceedings attached to the supporting affidavit was internally inconsistent and faulty. The record showed adjournment was rejected, meaning the hearing had to proceed. The Claimants and their advocate failed to prosecute the application. The illness of Ms. Rajab did not excuse non-attendance, as she was treated on 12th November 2014, two days before the hearing, and the reasons for adjournment differed from those now advanced.

p. 3
02

Whether the reinstatement application was properly founded on the Civil Procedure Act

Holding

The application was technically defective because it relied entirely on the Civil Procedure Act while the Industrial Court (Procedure) Rules 2010 govern the mechanism to revisit, vary or set aside the Court's decisions, and the Claimants did not explain ignoring those Rules.

Reasoning

The Court noted the Claimants invoked Article 59 of the Constitution and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules 2010. However, the Industrial Court had its own procedural Rules under which it could be moved to revisit, vary or set aside its decisions, and the Claimants offered no explanation for disregarding them, rendering the application defective.

p. 3

Legal principles established

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  • When an application for adjournment is refused, the hearing must proceed and a party cannot later complain of lack of opportunity to be heard after walking out
  • Proceedings in the Industrial Court must be brought under the Industrial Court (Procedure) Rules 2010 rather than the Civil Procedure Act where such Rules govern the relief sought

Court orders

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  1. 1.The Claimants' Application dated 28th November 2014 is refused
  2. 2.Costs in the cause
Jurisdiction invoked
Article 59 of the Constitution of Kenya; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 21; Order 12 Rule 7 of the Civil Procedure Rules 2010 (as invoked by the Applicants); Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gregory Mareko & 4 others v National General Secretary Dock Workers Union & 2 others [2014] KEELRC 27 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/27/eng@2014-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.