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ELRCStruck OutPetition No. 7 of 2015· [2016] KEELRC 489 (KLR)

Munir Abubakar Masoud v Commisioner of Customs & 3 others [2016] KEELRC 489 (KLR)

Employment and Labour Relations Court
28 October 2016
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly the plaintiff in Nairobi High Court Civil Case No. 196 of 2000 against the 3rd Respondent, had sought damages for wrongful retirement, back salaries and benefits. That suit was dismissed for non-prosecution. An application for reinstatement led to transfer of the case to the Employment and Labour Relations Court, which on 28 September 2015 directed that the High Court case remain dismissed but granted the Petitioner leave to file a fresh Claim within 40 days. Instead of filing an employment Claim under the Industrial Court [Procedure] Rules 2010, the Petitioner filed a constitutional Petition (No. 7 of 2015) citing the 1964 and 2010 Constitutions, adding the 1st, 2nd and 4th Respondents who were never party to the High Court case, and raising new issues of promotion, discrimination and grievances dating back to the East African Community era. The 1st and 3rd Respondents filed a preliminary objection alleging abuse of process. The Court agreed, holding that the leave contemplated a confined employment Claim with the same parties and issues as at the High Court; the Petition expanded and transformed the dispute into constitutional grievances and improperly joined new parties who were not privy to the leave. The Court also censured intemperate language in the Petition. The Petition was struck off, but the Petitioner was granted a further 30 days to file a fresh Claim against the 3rd Respondent confined to the original issues. No order was made on costs.

Key legal issues

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01

Scope of leave to file a fresh claim after dismissal for want of prosecution and transfer

Holding

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

Reasoning

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.

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02

Joinder of parties not covered by leave

Holding

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

Reasoning

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.

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03

Intemperate language in pleadings

Holding

The Petition contained intemperate language ('brutal and corrupt employers,' 'Customs Mafioso') which is improper in pleadings

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Petition filed on 6th November 2015 is struck off
  2. 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. 3.Such Claim shall be filed within 30 days
  4. 4.No order on the costs

Authorities

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Legislation

  • Constitution of Kenyacertain Articles (not specified); Constitutions of 1964 and 2010 referenced
  • Industrial Court [Procedure] Rules2010
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

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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, "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.