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ELRCDismissedEx Parte Originating Motion filed 18th March 2013, application dated 7th March 2013· [2014] KEELRC 678 (KLR)

Francis Joseph Kimele v Teachers Service Commission [2014] KEELRC 678 (KLR)

Industrial Court of Kenya
16 January 2014
768 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a bid to revive a decades-old employment dispute, confirming it cannot extend filing deadlines or accept procedures meant for other courts.

What this practically means

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Executive summary

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The Applicant filed an Ex Parte Originating Motion in the Industrial Court under Section 3(a) of the Civil Procedure Act, Order 50(1) of the Civil Procedure Rules, and Sections 27 and 28 of the Limitation of Actions Act, seeking leave to file an employment claim out of time, or in the alternative, consolidation of the claim with Nairobi High Court Civil Suit Number 2155 of 2001 between the same parties, with the plaint adopted as the claim. The Respondent, through a Replying Affidavit sworn by its Director in Charge of Administration, Simon Musyimi Kavisi, detailed a history of serial interdictions and court interventions. The parties agreed to a determination on the affidavits and submissions. The Court rejected the Application on three grounds. First, the Applicant had previously chosen the High Court forum in Nairobi High Court Civil Suit 2343 of 1999, was awarded damages - Kshs. 1,440,260 of which had been received - and it was improper to return to a different forum years later for relief he failed to obtain there. Second, his second suit, No. 2155 of 2001, had lain unprosecuted for twelve years, and the Industrial Court could not order consolidation of a matter pending in the High Court; the Applicant should have sought a transfer instead. Third, Industrial Court procedure is governed exclusively by the Industrial Court (Procedure) Rules 2010; an Originating Motion is unknown to the industrial justice system, and settled precedent of the Court's Judges establishes that it has no power to extend time for filing employment claims that are statute-barred. The Application dated 7th March 2013 was rejected with no order on costs.

Key legal issues

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01

Legality of the mode of application before the Industrial Court

Holding

The Originating Motion under the Civil Procedure Act and Limitation of Actions Act is not a competent procedure in the Industrial Court

Reasoning

Industrial Court procedure is specifically governed by the Industrial Court (Procedure) Rules 2010. The Civil Procedure Act applies only to the extent contemplated by those Rules. An application styled 'Originating Motion' is unknown to the industrial justice system, and neither such a Motion nor any other Motion can invoke the court's power where none exists in law.

p. 2
02

Power to extend time for filing a time-barred employment claim

Holding

The Industrial Court lacks power to extend time for filing employment claims that are statute-barred

Reasoning

A succession of judicial precedents by Judges of the Industrial Court has established that no law presently enables the Industrial Court to extend time in employment disputes. The sections of the Limitation of Actions Act invoked by the Applicant cannot confer a jurisdiction the Court does not possess under its governing statutes and Rules.

p. 2
03

Effect of prior choice of forum and prior High Court litigation

Holding

The Applicant, having elected the High Court forum in 1999 and obtained damages, could not later seek additional relief in a different forum, nor consolidate a stale second High Court suit into the Industrial Court

Reasoning

The Applicant sued in High Court Civil Suit 2343 of 1999, was awarded damages, and has already received Kshs. 1,440,260 under the decree. His second suit, No. 2155 of 2001, lay unprosecuted for twelve years. He should have sought transfer of that suit to the Industrial Court rather than consolidation, and the Industrial Court could not issue orders over a matter pending in the High Court.

p. 2

Legal principles established

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  • Procedure in the Industrial Court is exclusively regulated by the Industrial Court (Procedure) Rules 2010, and the Civil Procedure Act applies only to the extent contemplated by those Rules
  • The Industrial Court has no statutory power to extend time for filing employment claims that are statute-barred
  • A party who made a choice of forum, was heard and obtained remedies cannot return to a different forum years later to seek further relief on the same dispute

Court orders

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  1. 1.The Application dated 7th March 2013 is hereby rejected with no order on the costs

Authorities

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Legislation

  • Civil Procedure ActSection 3(a)
  • Civil Procedure RulesOrder 50(1)
  • Limitation of Actions Act, Cap 22Sections 27 and 28
  • Industrial Court [Procedure] Rules 2010null
Jurisdiction invoked
Section 3(a) of the Civil Procedure Act, Order 50(1) of the Civil Procedure Rules, and Sections 27 and 28 of the Limitation of Actions Act, Cap 22, read with the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Joseph Kimele v Teachers Service Commission [2014] KEELRC 678 (KLR)", Case Analysis (2014). Ex Parte Originating Motion filed 18th March 2013, application dated 7th March 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/678/eng@2014-01-16

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