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ELRCStruck OutNot stated in the judgment excerpt· [2016] KEELRC 907 (KLR)

Jacinta Kimuyu & 3 others v University Academic Staff Union (AUSU) & another [2016] KEELRC 907 (KLR)

Employment and Labour Relations Court
7 June 2016
NMNzioki wa Makau
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out union members' election challenge because they filed court papers one day late without permission — missing court-ordered deadlines can sink your case.

What this practically means

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Executive summary

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The Claimants moved the Employment and Labour Relations Court by Notice of Motion dated 18th May 2016, seeking interim injunctions restraining the 1st Respondent's officers from holding Technical University of Kenya Chapter elections scheduled for 19th May 2016, a declaration that the election notice was null and void, and an order for fresh election notice. On issuing conservatory orders ex-parte, the Court learned of a pre-existing cause, Industrial Cause No. 309 of 2016, involving the Respondent and a third party. The Claimants were granted a gratuitous order on 20th May 2016 requiring the amended motion to be filed and served on 23rd May 2016; they filed on 24th May 2016 without leave. The 1st Respondent raised a preliminary objection that the motion was improperly on record and should be struck out. Relying on Mukisa Biscuit v West End Distributors Ltd, the Court found the objection raised a pure point of law requiring no factual inquiry. Although counsel for the Claimants invoked Article 159(2)(d), blaming demonstrations for the delay, the Court held that a Court order is not a technicality, that the demos excuse was undemonstrated, and that failure to comply with a Court order amounts to wilful disobedience punishable as contempt. The motion was struck out with costs to the 1st Respondent.

Key legal issues

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01

Whether the amended motion filed on 24th May 2016, contrary to the Court order requiring filing by 23rd May 2016, was properly before the Court

Holding

The motion was improperly before the Court and was struck out

Reasoning

The Court granted a gratuitous order on 20th May 2016 with explicit timelines. The Claimants filed a day late without seeking leave and gave an unparticularised excuse of demonstrations on 23rd May 2016, without showing they were impeded from filing. Article 159(2)(d) permits consideration of technicalities; only undue technicalities cannot be regarded. A Court order is not a technicality, and non-compliance amounts to wilful disobedience punishable as contempt. The Court concluded striking out with costs was the only plausible outcome.

p. 3

Legal principles established

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  • Non-compliance with timelines set by a Court order is not a procedural technicality within Article 159(2)(d) but disobedience of a lawful order punishable as contempt

Court orders

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  1. 1.The Claimants' Notice of Motion dated 18th May 2016 struck out with costs to the 1st Respondent
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act; Article 41(2)(c) of the Constitution

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, "Jacinta Kimuyu & 3 others v University Academic Staff Union (AUSU) & another [2016] KEELRC 907 (KLR)", Case Analysis (2016). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/907/eng@2016-06-07

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