Munir Abubakar Masoud v Commisioner of Customs & 3 others [2016] KEELRC 489 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Scope of leave to file a fresh claim after dismissal for want of prosecution and transfer
The Petition exceeded the leave, which contemplated an employment Claim under the Industrial Court [Procedure] Rules 2010, with the same parties and issues as in the High Court case
The leave granted on 28 September 2015, with the concurrence of the 3rd Respondent, was intended to allow the Petitioner to revive a crystallized employment dispute (wrongful retirement, damages, terminal benefits, back salaries) against a specific Respondent. Instead, the Petitioner filed a constitutional petition citing the 1964 and 2010 Constitutions, added issues of promotion and discrimination, and joined the 1st, 2nd and 4th Respondents who were never privy to the leave. This went beyond the intended window of opportunity.
Joinder of parties not covered by leave
The leave did not permit the Petitioner to bring in the 1st, 2nd and 4th Respondents, who were not party to the High Court case or privy to the leave
The additional Respondents were not in the High Court case at the time of filing or through amendment since 2000, and were not privy to the leave. The Court intended that the Petitioner pick up the pieces from where the High Court case collapsed. Joining new parties and expanding issues changed the character of the Claim and was outside the contemplation of the leave.
Intemperate language in pleadings
The Petition contained intemperate language ('brutal and corrupt employers,' 'Customs Mafioso') which is improper in pleadings
Pleadings and proceedings should be in moderated language regardless of how passionate parties feel. The Industrial Relations Charter similarly requires Employers and Employees to resolve differences using temperate language. Intemperate language, like multiple-pleading, blurs rather than clarifies issues in dispute.
Legal principles established
#- Leave to file a fresh Claim must be confined to the parties and issues as they stood in the original dismissed suit; a litigant cannot use such leave to introduce new parties and transform an employment dispute into a constitutional petition
- Pleadings and proceedings must be in moderated, temperate language; intemperate language blurs the issues in dispute
Court orders
#- 1.The Petition filed on 6th November 2015 is struck off
- 2.The Petitioner is granted further leave to file a fresh Claim against the 3rd Respondent, confined to the issues in dispute at the High Court, in conformity with the Industrial Court Procedure Rules
- 3.Such Claim shall be filed within 30 days
- 4.No order on the costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment disputes, following transfer of Nairobi High Court Civil Case No. 196 of 2000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munir Abubakar Masoud v Commisioner of Customs & 3 others [2016] KEELRC 489 (KLR)", Case Analysis (2016). Petition No. 7 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/489/eng@2016-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.