Peter Dan Oruko & 9 others v Chemelil Sugar Co. Limited [2016] KEELRC 433 (KLR)
The bottom line
#A Kenyan court refused to reopen its earlier decision allowing late employment claims, telling the employer to fight the limitation issue inside the pending cases instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could review its ex parte ruling granting leave to file out of time
The application for review could not succeed because the court had become functus officio after the leave was acted upon and suits filed
The court reasoned that the leave orders had been fulfilled by the filing of the suits, the Respondent had participated in those suits raising limitation, and reopening the matter would serve no purpose. The Respondent's remedy is to plead limitation in the pending suits, either at hearing or by preliminary objection.
Whether the review was brought under the correct procedural provisions
The court's jurisdiction had been invoked under the wrong provisions - section 16 of the Employment and Labour Relations Court Act and Rule 32 of the Industrial Court (Procedure) Rules 2010 govern review, not section 80 of the Civil Procedure Act alone - but this defect alone was procedural and curable
The court noted section 16 of the ELRC Act and Rule 32 of the Industrial Court (Procedure) Rules 2010 govern review of the court's own decisions. Misinvocation of procedure was not fatal since the substantive provisions are similar. However, the functus officio ground disposed of the application.
Whether failure to file notice of appointment before the application rendered it improper
The objection failed - a party not previously a party to or involved in a suit need not file a notice of appointment before filing an application
The court held there is no legal requirement that a party newly involved in proceedings must first file a notice of appointment through counsel before filing an application. The Respondent had not previously been a party nor acted through other counsel.
Whether failure to appeal the ruling barred an application for review
No - the law provides that review is available precisely where no appeal has been preferred, so the argument was self-defeating
The court observed that the argument that the Respondent should have appealed instead was self-defeating because review may only be sought where no appeal has been filed.
Legal principles established
#- A court becomes functus officio once the orders it has granted are acted upon and suits are filed pursuant thereto; ex parte leave to file suit out of time may be challenged in the suit so filed
Court orders
#- 1.The application is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 51 Rule 3 of the Civil Procedure Rules; section 90 of the Employment Act; section 16 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Dan Oruko & 9 others v Chemelil Sugar Co. Limited [2016] KEELRC 433 (KLR)", Case Analysis (2016). Notice of Motion (undated cause number) arising from Kisumu Industrial Cause No. 206 of 2015 and related causes. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/433/eng@2016-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.