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ELRCDismissed2016 matter filed on 25th May 2016 (number not stated in judgment)· [2022] KEELRC 650 (KLR)

Hussein Ali Mwabado v Surraj Purr Ltd [2022] KEELRC 650 (KLR)

Employment and Labour Relations Court
24 February 2022
802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment claim filed in 2016 was dismissed because the claimant missed a seven-day deadline to explain the five-year delay by just one day.

What this practically means

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Executive summary

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This was a ruling on a notice to show cause why the Claimant's employment suit, filed on 25th May 2016, should not be dismissed for want of prosecution under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The suit had never been set down for hearing in over five years. A pending Notice of Motion by the Claimant seeking leave to amend the Memorandum of Claim, filed in October 2019, had not been prosecuted for over two years. After a show-cause notice issued on 11th November 2021, the Court on 25th November 2021 directed the Claimant to file and serve a show-cause affidavit within seven days, failing which the suit would stand dismissed, with the Respondent at liberty to respond within seven days of service, and mention on 14th December 2021. The Claimant's affidavit was sworn on 30th November 2021 but filed on 3rd December 2021, one day after the seven-day period expired. The Respondent's counsel filed a replying affidavit on 9th December 2021. The Court held that the suit stood dismissed automatically at the close of business on 2nd December 2021 because the show-cause affidavit was filed out of the ordered period and no cause had been shown to vary the orders of 25th November 2021. The affidavits filed on 3rd and 9th December 2021, being filed on a non-existent suit, were struck off. The Claimant's suit was dismissed for want of prosecution. No costs order was made.

Key legal issues

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01

Whether reasonable cause was shown to avoid dismissal under Rule 16 of the ELRC (Procedure) Rules, 2016

Holding

No reasonable cause was shown; the suit stood dismissed automatically when the Claimant failed to file the show-cause affidavit within the seven days ordered.

Reasoning

The suit, filed in May 2016, had never been set down for hearing in over five years. A show-cause notice under Rule 16 issued on 11th November 2021, and on 25th November 2021 the Court directed the Claimant to file a show-cause affidavit within seven days, failing which the suit would stand dismissed. The affidavit was filed on 3rd December 2021, after the seven days expired on 2nd December 2021. The orders had not been varied, so the dismissal took automatic effect.

p. 2
02

The status of documents filed after the suit stood dismissed

Holding

Affidavits filed after the dismissal date were filed in a non-existent suit and were struck off.

Reasoning

Having held that the suit stood dismissed on 2nd December 2021, the Court reasoned that the Claimant's affidavit of 3rd December 2021 and the Respondent's replying affidavit of 9th December 2021 related to a suit no longer on record, and struck them off. The Claimant's unprosecuted amendment application lapsed with the suit.

p. 2

Legal principles established

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  • Where a court orders that a suit stand dismissed for want of prosecution if no show-cause affidavit is filed within a fixed period, the suit stands dismissed automatically at the expiry of that period without further order.
  • Pleadings and affidavits filed in a suit after it has stood dismissed are filed on a non-existent suit and are liable to be struck off.

Court orders

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  1. 1.The affidavits filed on 3rd December 2021 (Claimant) and 9th December 2021 (Respondent) are struck off
  2. 2.The Claimant's suit is dismissed for want of prosecution

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15
Jurisdiction invoked
Rule 16 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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Cite this brief

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Cite this brief

Caselaw, "Hussein Ali Mwabado v Surraj Purr Ltd [2022] KEELRC 650 (KLR)", Case Analysis (2022). 2016 matter filed on 25th May 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/650/eng@2022-02-24

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