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ELRCDismissedNotice of Motion (undated cause number) arising from Kisumu Industrial Cause No. 206 of 2015 and related causes· [2016] KEELRC 433 (KLR)

Peter Dan Oruko & 9 others v Chemelil Sugar Co. Limited [2016] KEELRC 433 (KLR)

Industrial Court (Employment and Labour Relations Court)
15 September 2016
1,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Chemelil Sugar Company Limited filed a notice of motion under Order 51 Rule 3 of the Civil Procedure Rules, sections 1A, 1B, 3A and 80 of the Civil Procedure Act and section 90 of the Employment Act seeking (i) a stay of proceedings in Kisumu Industrial Causes No. 206 to 215 of 2014, (ii) review and setting aside of the court's ruling of 30th July 2014, and (iii) a declaration that the said suits, filed pursuant to leave granted ex parte to file out of time, were time barred. The Respondents, Peter Dan Oruko and 9 others, opposed the application through grounds of opposition and written submissions, arguing the application was misconceived, an abuse of process, delayed, and improperly filed by counsel not on record. The court held that the correct review jurisdiction lay under section 16 of the Employment and Labour Relations Court Act and Rule 32 of the Industrial Court (Procedure) Rules 2010, but the misinvocation was a curable procedural defect. The dispositive ground was that the court had become functus officio: the leave orders had been acted upon, the suits filed, and the Respondent had already participated in those suits raising limitation. The Respondent's remedy was to raise the plea of limitation in the pending suits, either at hearing or by preliminary objection. Objections based on counsel not being on record and failure to appeal were rejected. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the court could review its ex parte ruling granting leave to file out of time

Holding

The application for review could not succeed because the court had become functus officio after the leave was acted upon and suits filed

Reasoning

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.

p. 4
02

Whether the review was brought under the correct procedural provisions

Holding

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

Reasoning

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.

p. 3
03

Whether failure to file notice of appointment before the application rendered it improper

Holding

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

Reasoning

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.

p. 4
04

Whether failure to appeal the ruling barred an application for review

Holding

No - the law provides that review is available precisely where no appeal has been preferred, so the argument was self-defeating

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 3
  • Civil Procedure Actsections 1A, 1B, 3A, 80
  • Employment Actsection 90
  • Limitation of Actions Actsections 4(1), 4(4), 27, 28, 29
  • Employment and Labour Relations Court Actsection 16
  • Industrial Court (Procedure) Rules 2010Rule 32
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Civil Procedure RulesOrder 9 Rule 7

Cases cited (11)

  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013]eKLR
  • Boniface Inondi Otieno v Mehta Electrical Limited
    [2013]eKLR
  • Peter Nyamai & 7 others v M J Clarke Limited
    [2013]eKLR
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
  • G. M. Jivanji v M. Jivanji & Another
  • Benard Githinji v Kirale Farmers Co-operative Limited
  • Murugam Gichembe v Gunda Gichembe
  • National Bank of Kenya Limited v Ndungu Njau
  • Republic v Busia Senior Resident Magistrate's Court & another Ex-parte David Henry Muchelule & Another
    [2004]eKLR
  • Justus Ochido OP v Kenyatta University Nairobi Cause No.430 of 2015
  • Mary Wambui Kabugu v Kenya Bus Service Limited
    Civil Appeal No.195 of 1995
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

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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, "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.