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ELRCDismissedCause No. E583 of 2021· [2022] KEELRC 245 (KLR)

Alice Wangui Mwangi v Loxea Limited [2022] KEELRC 245 (KLR)

Employment and Labour Relations Court
21 April 2022
JGJACOB GAKERI
2,501 words in judgment
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The bottom line

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A Kenyan court refused to fast-track an unfair termination case, ruling that vague plans to move abroad don't justify jumping the procedural queue.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent alleging unfair termination following an initial redundancy declaration, applied by notice of motion dated 6th January 2022 for directions that her employment Cause be heard on a priority basis and dispensed with by written submissions, citing her impending immigration to Canada. The Respondent opposed, contending that the suit was not ready for hearing as case management requirements under Order 11 of the Civil Procedure Rules remained uncomplied with, that the immigration evidence was speculative, and that a virtual hearing would obviate any prejudice. The court framed a single issue: whether the Applicant had demonstrated the necessity of a priority hearing. Relying on the overriding objective and Article 159(2)(b) of the Constitution, the court acknowledged that justice must not be delayed but held, applying Aburili J's reasoning in Josephine Ndenyi v Vishak Builders Ltd, that pre-trial procedures must first be complied with before a suit can be certified for priority hearing. The court found the evidence of imminent immigration insufficient, being only an application for temporary residence with no indication of progress or timing, and rejected the claim that a virtual hearing would be impracticable given the operation of the 2021 Practice Directions across time zones. The application was declined with no orders as to costs. Judgment delivered virtually at Nairobi on 21st April 2022 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the Applicant established a case for priority hearing based on impending immigration to Canada

Holding

The application failed; the evidence of imminent immigration was insufficient and virtual hearing was a viable alternative

Reasoning

The court found the only evidence of the claimed relocation was an application for temporary residence with no indication of progress, likelihood or timing of approval. The claim of prejudice under Article 159(2)(b) was unpersuasive, and virtual hearings under the 2021 Practice Directions routinely accommodate parties in different time zones. Pre-trial procedures must be complied with before a suit can be certified for priority hearing.

p. 4

Legal principles established

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  • An applicant seeking priority hearing must first comply with pre-trial requirements and demonstrate tangible, evidenced urgency

Court orders

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  1. 1.The application for priority hearing is declined
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSections 1A and 1B
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 17 and 21
  • Civil Procedure Rules, 2010Order 11, Rule 3
  • Civil Procedure RulesOrder 21 Rule 1
  • Court Practice Directions2021

Cases cited (6)

  • M'kubania Ndwara v Caterina M'ibui & 4 others
    [2016] eKLR
  • Teachers Service Commission v Muchiri Kiraithe
    [2021] eKLR
  • Jim Rodgers Gitonga Njeru v Al-Husnain Motors Limited & 2 others
    [2018] eKLR
  • Josephine Ndenyi v Vishak Builders Ltd
    [2015] eKLR
  • Japheth Pasi Kilonga & 8 others v Mombasa Autocare Limited
    [2015] eKLR
  • Fitzpatrick v Batger & Co. Ltd
    (1967) 2 All ER 657
Jurisdiction invoked
Sections 1(A) and 3(A) of the Civil Procedure Act, Rule 17 and 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Alice Wangui Mwangi v Loxea Limited [2022] KEELRC 245 (KLR)", Case Analysis (2022). Cause No. E583 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/245/eng@2022-04-21

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