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ELRCDismissedPetition No. 70 of 2018· [2021] KEELRC 811 (KLR)

Francis Ndavi & 527 others v Put Sarajevo General Engineering Company [2021] KEELRC 811 (KLR)

Employment and Labour Relations Court
8 October 2021
RSRadido Stephen
916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused a company's last-minute attempt to delay judgment, ruling that late applications frustrate timely justice.

What this practically means

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Executive summary

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This is a procedural ruling (Ruling No. 3) in a constitutional petition by Francis Ndavi and 527 others against Put Sarajevo General Engineering Company, alleging violation of fundamental rights under Articles 22(1), 23(1), 28, 47(1), 50(1), 258 and 259 of the Constitution and raising issues under the Employment Act, 2007 and the Fair Administrative Actions Act. The ruling dealt with a Motion filed by the Respondent on 27 April 2021 - a day before the scheduled judgment date of 28 April 2021 - seeking to stay the comprehensive directions issued on 27 January 2021 and for leave to cross-examine the deponents of affidavits filed on behalf of the Petitioners. The Court traced the procedural history, noting repeated non-compliance by the Respondent with timelines, including failure to file submissions despite a direction of 18 February 2020 that the Petition proceed by way of written submissions, and persistent failure to respond to applications. The Court dismissed the Motion for four reasons: the Respondent moved very late, on the eve of judgment, while the directions sought to be varied had been issued three months earlier in the presence of the Respondent's advocate; the affidavits whose deponents were to be cross-examined had been on record before the directions were given; the Respondent was aware of the affidavits and never intimated any desire for viva voce evidence, the Court having directed disposal by submissions; and the directions had been given to secure the expeditious and proportionate determination of the Petition as contemplated by the Court's establishing statute. The Motion was dismissed with costs to the Petitioners; the Respondent was given until 18 October 2021 to file and serve submissions, and judgment was set for 17 November 2021.

Key legal issues

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01

Whether directions issued in a case-managed petition can be set aside on the eve of judgment

Holding

The Motion was dismissed because the Respondent moved too late, the affidavits were on record before the directions were issued, and the Petition had been ordered to proceed by submissions.

Reasoning

The Court enumerated four reasons for dismissing the Motion: the timing of the application on the eve of judgment; the affidavits sought to be cross-examined had been on record before the directions; the Respondent never indicated it wanted viva voce evidence while the Court had directed disposal by submissions since 18 February 2020; and the directions were geared to expeditious and proportionate determination under the Court's establishing statute.

p. 2

Legal principles established

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  • A party seeking to vary directions must move the Court timeously; a late application on the eve of judgment will be dismissed.
  • Case management directions are issued to secure the expeditious and proportionate determination of proceedings.

Court orders

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  1. 1.The Motion filed on 27 April 2021 is dismissed with costs to the Petitioners
  2. 2.The Respondent to file and serve submissions on or before 18 October 2021
  3. 3.Judgment on 17 November 2021

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23(1), 28, 47(1), 50(1), 258, 259
  • Employment Act
  • Fair Administrative Actions Act No. 4 of 2015
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Jurisdiction invoked
Articles 22(1), 23(1), 28, 47(1), 50(1), 258 and 259 of the Constitution, 2010

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, "Francis Ndavi & 527 others v Put Sarajevo General Engineering Company [2021] KEELRC 811 (KLR)", Case Analysis (2021). Petition No. 70 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/811/eng@2021-10-08

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