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ELRCDismissedNot stated in the judgment (Cause)· [2020] KEELRC 776 (KLR)

Thomas Ogutu v Postal Corporation of Kenya [2020] KEELRC 776 (KLR)

Employment and Labour Relations Court
26 June 2020
RSRadido Stephen
1,209 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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This Employment and Labour Relations Court ruling disposed of a motion filed by the Respondent on 17 February 2020, four days before the reserved judgment date of 21 February 2020. The Cause had a long history: the Claimant closed his case in July 2013; the Respondent's first witness testified partly in 2014 but never concluded, and the judge hearing the matter was transferred. On 3 April 2019 the Respondent was granted 30 days to prepare its witnesses and witness summons issued against the retired first witness, but the Respondent failed to ready its case, sought an adjournment on 28 November 2019 which the Court declined owing to the age of the Cause and the Respondent's non-compliance with previous orders. The Court then directed filing of submissions with judgment reserved. The Respondent's motion sought stay of those directions, arrest of judgment, re-opening of its case and substitution of witnesses. The Court held that although the Respondent had invoked the Civil Procedure Rules rather than the ELRC (Procedure) Rules, this wrong invocation did not divest the Court of jurisdiction since the Claimant knew the substance of the motion and suffered no prejudice, consistent with the constitutional aversion to procedural technicalities. On the merits, the Respondent had known of the witness's reluctance well before 28 November 2019, had been indulged on 3 April 2019, and offered no good or sufficient reason for moving only four days before judgment. The Court found the Respondent guilty of indolence and dismissed the motion with costs on 26 June 2020.

Key legal issues

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01

Effect of invoking wrong procedural rules

Holding

No jurisdiction is lost and no prejudice arises where the substance of the motion was known to the other party

Reasoning

Article 159(2)(d) of the Constitution requires courts not to pay undue regard to procedural technicalities. The Claimant knew the substance of the motion from the motion and supporting affidavit, so no prejudice arose from reliance on the Civil Procedure Rules instead of the ELRC Rules.

p. 3
02

Whether re-opening the defence and arresting judgment should be allowed

Holding

Refused: the Respondent was indolent, had been indulged earlier on 3 April 2019, and moved only four days before judgment without good reason

Reasoning

The Respondent knew of the witness's reluctance by inference when witness summons were applied for; it had ample time from February 2019 to substitute the witness and did nothing. It also failed to explain the position of the second witness. Discretionary orders require a case to be made out on good or sufficient reason.

p. 3

Legal principles established

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  • The mere invocation of the wrong rules (Civil Procedure Rules) does not divest the Court of jurisdiction to grant merited orders where no prejudice is shown
  • A party seeking discretionary orders must explain delay and show diligence; indolence defeats such applications

Court orders

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  1. 1.The motion dated 17 February 2020 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d) (referred to as Article 159(3)(d))
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Civil Procedure RulesNot specified
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the Cause and its own (Procedure) Rules, including Rule 33 on review

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, "Thomas Ogutu v Postal Corporation of Kenya [2020] KEELRC 776 (KLR)", Case Analysis (2020). Not stated in the judgment (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/776/eng@2020-06-26

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