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ELRCDismissedCause (Number not stated in the judgment)· [2016] KEELRC 320 (KLR)

Kenya Union of Domestic, Hotels,Educational Institutions, Hospitals and Allied Workers v Arutani Secondary School [2016] KEELRC 320 (KLR)

Industrial Court (Employment and Labour Relations Court)
11 November 2016
RSRadido Stephen
824 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to revive a dismissed case because the union hid key facts in its affidavit and waited over six months to act.

What this practically means

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Executive summary

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The Cause, a claim by Bakers Union on behalf of Grievant Simon Towett against the Board of Management, was dismissed on 10 December 2015 after neither party appeared at a show cause hearing fixed following their non-attendance at a mention on 9 November 2015. The Claimant filed a motion dated 12 July 2016 seeking that the dismissal be reviewed or set aside, arguing that it never received the show cause notice and that under Order 17 rule 1 of the Civil Procedure Rules, supported by the Ibrahim Athman Said and Associated Warehouse decisions, proof of service of a show cause notice was mandatory before dismissal. The Respondent opposed, asserting both parties were served and that a cause list was published on the court notice board and the Kenya Law Reports website. The Court accepted that the application invited an exercise of discretion, which had to be exercised judiciously and not arbitrarily. It found that at the material time the Union appeared through an Industrial Relations Officer, so the notice was sent directly to the Union, yet the supporting affidavit was sworn only by the Grievant, did not identify the Union official who allegedly reported non-receipt, and failed to disclose the source of the information - amounting to a failure of frank and honest disclosure. Further, the Claimant waited over six months before moving the Court without explaining the delay, which the Court held was inordinate. The Court accordingly declined to exercise its discretion in the Claimant's favour and dismissed the motion with no order as to costs. Judgment was delivered in Nakuru on 11 November 2016 by Radido Stephen, Judge.

Key legal issues

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01

Disclosure in applications for discretionary relief

Holding

The supporting affidavit sworn by the Grievant rather than a Union official did not disclose the source of information, amounting to failure of frank and honest disclosure

Reasoning

The affidavit was sworn by the Grievant, not by an official of the Claimant Union who dealt with the show cause notice. It did not identify who in the Union informed the advocates that the notice was not received. Depositions based on information from others must disclose the source. The discretion to set aside dismissal therefore could not be exercised in the Claimant's favour.

p. 2
02

Inordinate delay

Holding

The over six months' delay in moving the Court to set aside the dismissal was inordinate and unexplained

Reasoning

The Cause was dismissed on 10 December 2015 but the application was only filed on 14 July 2016. No explanation for the delay was offered in the affidavit. Unexplained inordinate delay weighed against the exercise of discretion in the Claimant's favour.

p. 2

Legal principles established

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  • A party seeking the exercise of the Court's discretion must make frank and honest disclosure of the surrounding and material facts
  • Discretion must be exercised judiciously, not arbitrarily or capriciously

Court orders

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  1. 1.The motion dated 12th July 2016 dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 1

Cases cited (2)

  • Ibrahim Athman Said v Ibrahim Abdille Abdullah & Ar
    (2014) eKLR
  • Associated Warehouse Company Ltd v Trust Bank Ltd (under CBK statutory management)
    (2004) eKLR
Jurisdiction invoked
Jurisdiction not expressly stated; the Cause is before the Industrial Court exercising discretion over its own process (review/setting aside of a dismissal for non-appearance)

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, "Kenya Union of Domestic, Hotels,Educational Institutions, Hospitals and Allied Workers v Arutani Secondary School [2016] KEELRC 320 (KLR)", Case Analysis (2016). Cause (Number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/320/eng@2016-10-11

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