Transport & Allied Workers Union v Everest Enterprise Limited [2015] KEELRC 698 (KLR)
The bottom line
#A Kenyan employment court refused to reinstate a dismissed case, but sent the parties to a conciliator to settle their dispute.
What this practically means
#Executive summary
#Key legal issues
#Principles for setting aside a dismissal of a suit for non-appearance
The Court has a wide, just discretion to set aside a dismissal before judgment on the merits, guided by doing justice to the parties and by whether there was an excusable mistake
Relying on Patel v EA Cargo Handling Services Ltd and CMC Holdings v Nzioki, the Court noted the discretion to set aside is exercised judiciously, on just terms, and exists to spare a litigant injustice from excusable mistake. The Court found negotiations were ongoing per the Court record, but held the Claimant had not properly brought itself within the grant of the orders sought.
Sufficiency of the notice of motion under Order 51 Rule 4 CPR and Rule 16(5) of the Industrial Court (Procedure) Rules
The application was not deficient: Rule 16(5) requires grounds stated in general terms, and the affidavit did so; recourse to the Civil Procedure Rules applies only where there is lacuna
The Respondent argued the motion was fatally defective under Order 51 Rule 4 for lacking grounds on its face. The Court held the Industrial Court may regulate its own procedure under Rule 36, that Rule 16(5) requires grounds in general terms which were stated, and therefore there was no departure from the Rules of the Court.
Whether the Claimant's non-appearance on 4th May 2015 was an excusable mistake
Negotiations were ongoing and the Claimant was correct as to that, but the dismissal was nonetheless upheld; the dispute was referred to conciliation instead
The Court found from the record, including an appearance before Mbaru J on 4th December 2014 where parties indicated agreement on some aspects, that negotiations were ongoing and nearly finalized. However, the Claimant had attached a privileged document and did not bring itself properly to the orders sought, so the dismissal stood while the dispute was referred to a conciliator.
Legal principles established
#- Where there is lacuna in the Industrial Court (Procedure) Rules 2010, recourse may be had to the Civil Procedure Rules, since the Court may regulate its own procedure
- A notice of motion stating the grounds of the application in general terms in the supporting affidavit satisfies Rule 16(5) of the Industrial Court (Procedure) Rules 2010
Court orders
#- 1.The dismissal of the suit of 4th May 2015 is upheld
- 2.The dispute is referred to a conciliator to be appointed by the Ministry of Labour and Social Security Services to bring the dispute to an end
- 3.Parties are at liberty to apply
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010; the Court referred to its power to regulate its own procedure under Rule 36
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport & Allied Workers Union v Everest Enterprise Limited [2015] KEELRC 698 (KLR)", Case Analysis (2015). Industrial Cause (not stated in judgment; related suit dismissed 4th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/698/eng@2015-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.