Fat –Hi Ghalib Athman Basheikh v First Community Bank Limited [2019] KEELRC 1341 (KLR)
The bottom line
#An employer who filed its defence two months late kept it, but had to pay Kshs. 7,500 in costs first — Kenya's employment court treats deadlines seriously.
What this practically means
#Executive summary
#Key legal issues
#Whether the two-month delay in filing the Statement of Response was excusable
The delay was inordinate and without genuine reason; the 21 days under Rule 13 are sufficient even where documents are held in different offices
The Court found that 21 days suffice for gathering documents from various departments and branches countrywide, and that electronic transmission makes the excuse of documents being split between Mombasa and Nairobi unconvincing. The Respondent gave no genuine reason, and delay of two months for a 21-day task is inordinate.
Applicability of the Civil Procedure Rules to E&LRC proceedings
The Civil Procedure Rules relied on by the Respondent have no relevance in E&LRC proceedings
The Respondent repeatedly cited the Civil Procedure Rules to justify disregarding the delay, but the Court held those Rules do not govern this Court's procedure; the E&LRC (Procedure) Rules 2016 alone apply, and they permit late documents to be filed and served 14 days before hearing under Rule 14(10).
Appropriate remedy for late filing of a Statement of Response
Striking out is draconian where all documents have been filed; the response was deemed properly filed upon payment of court fees, with a conditional costs order
Although the timelines are mandatory and the delay unjustified, the interest of justice favoured a proportionate remedy: deeming the Statement of Response properly filed upon payment of requisite court fees, and conditioning further audience on payment of Kshs. 7,500 in costs to the Claimant, rather than the draconian remedy of striking out.
Legal principles established
#- Timelines prescribed under the E&LRC (Procedure) Rules are not mere procedural technicalities and must be followed
- The Civil Procedure Rules have no relevance in proceedings of the Employment and Labour Relations Court
- Two months' delay in performing a task prescribed to be done in 21 days is inordinate delay
- A party need not file all documents intended to be relied upon simultaneously with its pleadings
Court orders
#- 1.The Application to strike out the Statement of Response is refused
- 2.The Statement of Response shall be deemed properly filed and served, upon payment of the requisite Court Fees
- 3.The Respondent shall pay costs of Kshs. 7,500 to the Claimant before it can be granted further audience by the Court
- 4.Parties to comply with Rule 15 of the E&LRC Rules as earlier ordered
- Jurisdiction invoked
- Employment and Labour Relations Court Procedure Rules 2016, Rules 13, 14(10), 15 and Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fat –Hi Ghalib Athman Basheikh v First Community Bank Limited [2019] KEELRC 1341 (KLR)", Case Analysis (2019). Cause No 463 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1341/eng@2019-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.