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ELRCDismissedCause No 1666 of 2013· [2014] KEELRC 619 (KLR)

James Davies Njuguna v Simon Mithamo & 3 others [2014] KEELRC 619 (KLR)

Industrial Court of Kenya
28 February 2014
JRJames Rika
1,260 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that Civil Procedure Rules don't apply to it, rejecting a bid to pause a case pending payment of High Court costs.

What this practically means

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Executive summary

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The Respondents applied under Order 25 Rule 4 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act for a stay of proceedings in the Suit pending payment of costs arising from Nairobi High Court Civil Case Number 198 of 2012, which the Claimant had withdrawn by notice dated 9th October 2013. The Respondents, supported by the affidavit of Jacob Omondi, General Manager of the 4th Respondent, argued that the Claimant had withdrawn the High Court Suit without notifying them and had given no undertaking to pay costs, relying on several High Court decisions holding that a fresh suit should be stayed pending payment of costs in a discontinued previous suit. The Claimant opposed, submitting that no costs had been certified or awarded, and that the Civil Procedure Rules do not apply to the Industrial Court. The Court, through James Rika, Judge, held that the Civil Procedure Act applies only to the High Court and Subordinate Courts; that the Industrial Court, established under Section 4(1) of the Industrial Court Act in pursuance of Article 162(2)(a) of the Constitution, is a specialized jurisdiction exercising industrial justice, not civil jurisdiction; and that its proceedings are regulated by the Industrial Court (Procedure) Rules 2010. The application was therefore incompetent for invoking the Civil Procedure Act and Rules. In any event, the Respondents adduced no evidence of any existing order, certificate or pursuit of costs at the High Court; had they done so, the Court might have stayed proceedings under the doctrine of comity. The application was rejected, proceedings were directed to continue under the Court's Procedural Rules, and no order was made on costs.

Key legal issues

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01

Applicability of the Civil Procedure Act and Rules to the Industrial Court

Holding

They do not apply of their own force; Industrial Court proceedings are regulated by the Industrial Court (Procedure) Rules 2010, with the Civil Procedure Act and Rules available only to the extent contemplated by those Rules or where they are silent

Reasoning

Section 1(2) of the Civil Procedure Act limits its scope to the High Court and, subject to the Magistrate's Courts Act, Subordinate Courts. The Industrial Court is established under Article 162(2)(a) and the Industrial Court Act, has the status of the High Court, but is not the High Court or a Subordinate Court under Article 169. It exercises a specialized industrial justice jurisdiction, including quasi-judicial functions, not civil jurisdiction.

p. 2
02

Whether a stay should issue pending payment of High Court costs

Holding

The application failed; it was incompetent for invoking the Civil Procedure Act and Rules, and in any event no order for costs, certificate of costs, or evidence of pursuit of costs at the High Court was exhibited

Reasoning

Even if Order 25 were adopted by default or discretion, the Respondents produced no material showing an existing order on costs or certificate of costs from the High Court, nor any bill of costs filed, certification pursued, or execution attempted. Had such material existed, the Court might have stayed proceedings under the doctrine of comity of Courts to ensure the High Court proceedings were fully exhausted.

p. 3

Legal principles established

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  • The Civil Procedure Act applies only to the High Court and Subordinate Courts and does not govern Industrial Court proceedings
  • The Civil Procedure Act and Rules may apply to Industrial Court proceedings only to the extent contemplated by the Industrial Court (Procedure) Rules 2010, or where those Rules are silent

Court orders

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  1. 1.The application filed by the Respondents dated 6th December 2013 is rejected
  2. 2.Proceedings before this Court to go on in accordance with this Court's Procedural Rules
  3. 3.No order on the costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1(2), 1A, 1B, 3A and 2
  • Civil Procedure Rules 2010Order 25 Rule 4
  • Magistrate's Courts Act, Cap 10Not specified
  • Constitution of KenyaArticles 165(1), 162(2)(a), 169
  • Industrial Court Act No. 20 of 2011Section 4(1)
  • Industrial Court (Procedure) Rules 2010Rule 31 (as referenced in cited decision)

Cases cited (5)

  • Patrick Kigera Mathia & Another
    (2011) e-KLR
  • Bernard Mutali v. Veronica Namalwa
    KITALE HCCC NO. 33 of 2006
  • Aggrey Peter Thande v. ABN Amiro Bank & 2 Others
    NBI HCCC NO. 20 of 2005
  • Francis Joseph Kimele v. the Teachers Service Commission
    Industrial Court Miscellaneous Civil Application Number 9 of 2013
  • Jeremiah Mutua Mutea v. the Standard Newspapers Limited
    Industrial Court Cause Number 2194 of 2014
Jurisdiction invoked
Industrial Court established under Section 4(1) of the Industrial Court Act No. 20 of 2011, in pursuance of Article 162(2)(a) of the Constitution of Kenya

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, "James Davies Njuguna v Simon Mithamo & 3 others [2014] KEELRC 619 (KLR)", Case Analysis (2014). Cause No 1666 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/619/eng@2014-02-28

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