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ELRCAllowedCause No. 2001 of 2014· [2019] KEELRC 318 (KLR)

Amalgamated Union of Kenya Metal Workers v Mashariki Motors Limited & 2 others [2019] KEELRC 318 (KLR)

Employment and Labour Relations Court
31 October 2019
HWHellen Wasilwa
1,609 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed it can reinstate a claim it earlier dismissed for want of prosecution when the claimant's failure to attend was excusable.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court, delivered by Hellen Wasilwa, J on 31st October 2019, determined two competing applications: a Notice of Motion dated 2nd May 2019 by the Claimant seeking reinstatement of Cause No. 2001 of 2014, which had been dismissed for want of prosecution on 17th October 2018, and a Notice of Preliminary Objection dated 17th May 2019 by the 3rd Respondent contending that the Court was functus officio and lacked jurisdiction to entertain the reinstatement application. The Claimant, through Benjamin Ong'amo, explained that it could not trace the Advocate for the 1st and 2nd Respondents, Antony Gikaria, who had relocated his offices, and that it was never served with the show cause notice before the dismissal. The Claimant argued that the Court enjoys equivalent jurisdiction to reinstate a dismissed suit and that its members, declared redundant and unpaid, would suffer irreparable loss. The 3rd Respondent relied on Mukisa Biscuits and several authorities to argue that dismissal for want of prosecution is a final determination rendering the Court functus officio. The Court found the omission to attend Court excusable, holding that a claimant should not suffer the mistake of counsel, and exercised its discretion in favour of reinstatement. The Preliminary Objection did not prevail. The application was allowed, the claim was reinstated for hearing expeditiously, and costs were made costs in the cause.

Key legal issues

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01

Whether the Court was functus officio after dismissing the Claim for want of prosecution

Holding

No. The Court retains discretion to reinstate a suit it dismissed for want of prosecution, and the omission to attend Court was excusable.

Reasoning

The 3rd Respondent argued that dismissal for want of prosecution is a final determination rendering the Court functus officio. The Court rejected this, holding that the failure to attend on 17th October 2018 was excusable since the Claimant was not served with the show cause notice and could not trace the Advocate for the 1st and 2nd Respondents. A party should not be made to suffer the mistake of its Counsel, and the discretion to reinstate was exercised.

p. 3

Legal principles established

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  • A claimant should not be made to suffer the mistake of their counsel; the Court retains discretion to reinstate a suit dismissed for want of prosecution where the omission to attend is excusable.
  • The Court enjoys the same jurisdiction to reinstate a dismissed suit as it has to dismiss it.

Court orders

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  1. 1.The Application dated 2nd May 2019 is allowed and the dismissed Claim (Cause No. 2001 of 2014) is reinstated for hearing expeditiously
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 36(1)
  • Constitution of KenyaArticle 41(1), (2)(b), (c)
  • Labour Relations Act 2007Sections 73 and 74
  • Employment and Labour Relations Court ActSection 12

Cases cited (7)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696 at 700
  • The Owners of the Rive Rima
    (1987) 3 ALL ER 1
  • Roy Shipping S.A Agencies and all interested ship "Mama Otan" Vs Dodoma Fishing Company Limited
    (1995-1998) 2 EA 293
  • The Owners of the Motor Vessel "Lillian S" Vs Caltex Oil Kenya Ltd
    (1989) KLR
  • Raila Odinga & 2 Others Vs Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
  • Telcom Kenya Limited Vs John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telcom Kenya Limited)
    (2014) eKLR
  • David Mwangi Mburu Vs Intercontinental Nairobi Limited
    (2018)
Jurisdiction invoked
Articles 36(1) and 41(1), (2)(b), (c) of the Constitution of Kenya; Sections 73 and 74 of the Labour Relations Act 2007; Section 12 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, "Amalgamated Union of Kenya Metal Workers v Mashariki Motors Limited & 2 others [2019] KEELRC 318 (KLR)", Case Analysis (2019). Cause No. 2001 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/318/eng@2019-10-31

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