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ELRCDismissedNot stated in judgment· [2019] KEELRC 704 (KLR)

Samuel Kabui Munyiri v Pioneer Plumbers Limited [2019] KEELRC 704 (KLR)

Employment and Labour Relations Court
27 September 2019
MOMAUREEN ONYANGO
1,503 words in judgment
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The bottom line

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A Kenyan employment claim collapsed because the claimant never served summons, and the court refused to revive it despite appeals to substantive justice.

What this practically means

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Executive summary

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Samuel Kabui Munyiri, the claimant, filed a Notice of Motion dated 18th December 2018 seeking leave for the firm of Mwaniki Njuguna and Company Advocates to come on record in place of Gakoi Maina and Company Advocates, review and setting aside of the order of 25th January 2018 dismissing his suit for want of prosecution, reinstatement of the suit for hearing, and costs in the cause. The application, supported by an affidavit of his advocate rather than the claimant himself, asserted that summons to enter appearance were never extracted, that the delay was attributable to the former advocates' lack of diligence, and that Article 159(2)(d) required substantive justice. The court, Maureen Onyango J, framed two issues: whether there was a suit capable of reinstatement given that no summons were taken out and the memorandum of claim was never served, and whether the applicant met the threshold for the orders sought. Examining Rule 11 of the ELRC (Procedure) Rules 2016 and Order 5 Rule 1 of the Civil Procedure Rules, and applying the Dahman and Orumoi authorities, the court held that failure to take out and serve summons caused the suit to abate, leaving nothing to reinstate. Invoking Salat and Raila Odinga, the court held that Article 159(2)(d) is not a panacea for procedural shortfalls and applies case by case. The court also questioned the claimant's prolonged inaction since July 2015 and his failure to personally swear the affidavit. The application was dismissed on 27th September 2019, with no separate costs order recorded.

Key legal issues

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01

Fate of a suit where no summons are issued

Holding

The suit abated where summons were never taken out or served, and there is consequently no suit capable of being reinstated.

Reasoning

The court relied on Rule 11 of the ELRC (Procedure) Rules 2016 and Order 5 Rule 1 of the Civil Procedure Rules, which require summons to issue and be served. Under Order 5 Rule 1(6), summons not collected for service within thirty days cause the suit to abate. Authorities cited (Dahman, Orumoi) support abatement or non-extension where summons were not served or collected. The applicant had not sought issue or re-issue of summons and had not disclosed that service was never effected.

p. 3
02

Whether the applicant met the threshold for review and reinstatement under Order 12 Rule 7

Holding

The applicant failed to meet the threshold; the dismissal for want of prosecution resulted from the claimant's own inaction over more than three years, and Article 159(2)(d) does not excuse such shortfalls.

Reasoning

The court noted the claimant did practically nothing between filing on 20th July 2015 and dismissal on 25th January 2018, did not even take out summons, and did not personally swear the supporting affidavit. Counsel's affidavit could not explain the claimant's own inaction. Relying on Salat and Raila Odinga, the court held Article 159(2)(d) is not a panacea for procedural shortfalls and applies case by case.

p. 3

Legal principles established

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  • A suit in which summons are never taken out and served abates and cannot be reinstated
  • Article 159(2)(d) of the Constitution does not cure every procedural shortfall; it applies case by case

Court orders

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  1. 1.The application dated 18th December 2018 is dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d) and (e)
  • Civil Procedure ActSections 80, 1A, 1B and 3A
  • Civil Procedure RulesOrder 12 Rule 7; Order 5 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 11

Cases cited (4)

  • Abdulbasit Mohamed Ahmed Dahman and Another -V- Fidelity Commercial Bank Limited
    (2016) eKLR
  • Kialeken Ole Kiolonka Orumoi -V- Mellech Engineering and Construction Limited and 2 Others
    (2019) eKLR
  • Nicholas Kiptoo Arap Koriri Salat -V- IEBC and 6 Others
    (2013) eLRC
  • Raila Odinga and 5 Others -V- IEBC and 3 others
    (2013) eKLR
Jurisdiction invoked
Article 159(2)(d) and (e) of the Constitution; Sections 80, 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Kabui Munyiri v Pioneer Plumbers Limited [2019] KEELRC 704 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/704/eng@2019-09-27

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