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ELRCOtherELRC Cause at Mombasa, Suit filed March 8, 2019 (Memorandum of Claim dated March 7, 2019)· [2022] KEELRC 1493 (KLR)

Mwakuyu & 12 others v Taita Taveta County Government & another (Cause 11 of 2019) [2022] KEELRC 1493 (KLR)

Employment and Labour Relations Court
2 June 2022
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling on a notice to show cause why the suit should not be dismissed for want of prosecution, issued under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, following the Deputy Registrar's notice of November 17, 2021. The Claimants, who filed their Memorandum of Claim on March 8, 2019, swore a show-cause affidavit by the 1st Claimant, Jacob Mwakugu, explaining that interim orders restraining recruitment had been issued in March 2019; that the Respondents' appeal, Civil Appeal No. 38 of 2019, and a stay application led to a consent of May 6, 2019 referring matters to the Public Service Commission; that the appeal was dismissed for want of prosecution on June 29, 2020 with a reinstatement application pending; and that contempt proceedings were pending before the Court of Appeal. Counsel for the Respondents did not oppose the suit being sustained, attributing the delay to the Court of Appeal and PSC proceedings, but argued the suit was overtaken by events because the Claimants' PSC claim was dismissed without appeal and their positions were filled. The Court held the Claimants had shown sufficient cause and that the 'overtaken by events' contention was a factual issue for trial. It declined to dismiss the suit but directed the Claimants to prosecute it within twelve months, failing which it would stand dismissed. The ruling was delivered at Mombasa on June 2, 2022 by Agnes Kitiku Nzei, J, via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether sufficient cause was shown to avoid dismissal for want of prosecution under Rule 16 of the ELRC (Procedure) Rules 2016

Holding

Sufficient cause was shown; the delay was occasioned by related proceedings before the Court of Appeal and the Public Service Commission, including consent orders and pending contempt and reinstatement applications.

Reasoning

The Court reviewed Rule 16, the show-cause affidavit of the 1st Claimant detailing interim orders of March 2019, the consent of May 6, 2019 before the Court of Appeal, the dismissed appeal and pending applications, and the Respondents' own concession that they were not opposed to the suit being sustained. It concluded the Claimants had not failed to prosecute the suit and declined dismissal, subject to a twelve-month prosecution direction.

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02

Whether the suit is overtaken by events given the PSC proceedings and recruitment of new officers

Holding

That contention is a factual matter that cannot be resolved on a notice to show cause; it awaits trial evidence.

Reasoning

The Respondents argued the claim was overtaken by events under Article 232 of the Constitution, the Public Service Act and Section 77 of the County Governments Act, and that new officers had served for three years. The Court held such a factual assertion could only be determined upon presentation of evidence if the suit proceeds to trial, and noted nothing barring the Claimants from prosecuting the suit if they wish.

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Legal principles established

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  • A contention that a suit has been overtaken by events is an issue of fact determinable only at trial upon evidence, not on a notice to show cause
  • Where interim and related proceedings (stay applications, appeals, PSC proceedings) explain the delay, sufficient cause is shown and the suit should not be dismissed for want of prosecution

Court orders

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  1. 1.The Court declined to dismiss the suit for want of prosecution
  2. 2.The Claimants were directed to prosecute the suit within twelve months from the date of the ruling, failing which the suit shall stand dismissed for want of prosecution

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 16
  • Constitution of KenyaArticle 232
  • Public Service Actnot specified
  • County Governments ActSection 77
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 16

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, "Mwakuyu & 12 others v Taita Taveta County Government & another (Cause 11 of 2019) [2022] KEELRC 1493 (KLR)", Case Analysis (2022). ELRC Cause at Mombasa, Suit filed March 8, 2019 (Memorandum of Claim dated March 7, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1493/eng@2022-06-02

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