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ELRCOtherMiscellaneous Application No. 47 of 2014 (reconstructed file; claim application dated 19th December 2013)· [2015] KEELRC 328 (KLR)

Bakari Kea v Evangelical Lutheran Church of Kenya (ELCK) through Arch-Bishop Rt. Rev. Dr. Walter Obare Omwanza & 2 others [2015] KEELRC 328 (KLR)

Employment and Labour Relations Court
29 October 2015
789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that when a court file goes missing, the last recorded orders stand and protections for the claimant continue.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court in Nairobi arising from a reconstructed file. The Claimant, Bishop of the ELCK Central Diocese, had moved the Court by application dated 19th December 2013 claiming his position was unfairly jeopardized by the Respondents. On 19th December 2013 the Court stayed the Respondents' resolution of 16th December 2013 pending further orders. The Respondents' preliminary objection on jurisdiction was dismissed on 12th February 2014 and they obtained leave to appeal, after which the original court file went missing. The dispute before the Court was whether, on 12th February 2014, the Court had also granted conservatory orders allowing the Claimant to remain Bishop pending the appeal: counsel for the Claimant swore such orders were made, while counsel for the Respondents deponed to no recollection of them. Unable to resolve the conflict because the record was lost, the Court invoked its inherent powers to do substantive justice and deemed the orders of 19th December 2013 to be the last conservatory orders on record. It accordingly stayed the Respondents' resolution of 16th December 2013 pending hearing of the Claimant's application, extended the orders of 16th May 2014 restraining any elections in the ELCK Central Diocese, directed parties to take hearing dates on priority basis, and advised them to prioritize the main suit over the many pending interlocutory applications. No costs order was made.

Key legal issues

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01

Determination of the existence of conservatory orders on a missing record

Holding

The Court could not establish whether conservatory orders were issued on 12th February 2014; it fell back on its inherent powers and deemed the orders of 19th December 2013 the last conservatory orders on record.

Reasoning

Counsel for the Claimant swore that conservatory orders preserving the Claimant as Bishop were granted on 12th February 2014, while counsel for the Respondents deponed to no recollection of such orders. The original file, which would have resolved the dispute, went missing while certified proceedings were awaited. The only verifiable record was the order of 19th December 2013, which stayed the Respondents' 16th December 2013 resolution. The Court used that as the starting point and deemed it the last conservatory order, restoring continuity of interim protection.

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02

Continuation of interim protection pending hearing of the main suit

Holding

The stay of the Respondents' resolution of 16th December 2013 was reinstated and the orders of 16th May 2014 restraining diocesan elections were extended pending hearing of the pending applications.

Reasoning

To preserve the subject matter of the suit after reconstruction of the file, the Court extended existing restraint orders and re-imposed the stay of the resolution displacing the Claimant, directing parties to set down the pending applications on priority basis and, better still, to fix the main suit for final determination rather than proliferate interlocutory applications.

p. 2

Legal principles established

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  • Where a court file goes missing and the record is incomplete, the court may fall back on its inherent powers to do substantive justice and on the orders remaining on record.
  • The last recorded orders on a reconstructed file may be deemed the operative orders where the parties dispute what transpired.

Court orders

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  1. 1.The orders of 19th December 2013 are deemed to be the last orders in respect of the conservatory orders
  2. 2.The Respondents' resolution made on 16th December 2013 is stayed pending the hearing and determination of the Claimant's application dated 19th December 2013
  3. 3.The orders made on 16th May 2014 restraining the Respondents from carrying out any elections with regard to ELCK Central Diocese are extended pending hearing and determination of the said application
  4. 4.Parties to take a date on priority basis for hearing of the two applications
  5. 5.Parties advised to consider staying all the applications in favour of taking a hearing date for the main suit for final determination
Jurisdiction invoked
Inherent powers of the Court to do substantive justice; reconstructed file pursuant to Miscellaneous Application No. 47 of 2014

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, "Bakari Kea v Evangelical Lutheran Church of Kenya (ELCK) through Arch-Bishop Rt. Rev. Dr. Walter Obare Omwanza & 2 others [2015] KEELRC 328 (KLR)", Case Analysis (2015). Miscellaneous Application No. 47 of 2014 (reconstructed file; claim application dated 19th December 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/328/eng@2015-10-29

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