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ELRCDismissedCause No 399 of 2018· [2023] KEELRC 650 (KLR)

Musyimi v Kobian [Kenya] Limited (Cause 399 of 2018) [2023] KEELRC 650 (KLR)

Employment and Labour Relations Court
24 February 2023
1,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to consolidate two cases because the employer waited four years without explaining the delay, dismissing the application as a delay tactic.

What this practically means

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Executive summary

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By a Notice of Motion under Rules 17 and 23 of the Employment and Labour Relations Court (Procedure) Rules, 2016, the Respondent, Kobian [Kenya] Limited, sought consolidation of this suit with ELRC Cause Number 897 of 2018 (Willice Odhiambo v Kobian [Kenya] Limited), together with directions for the conduct of the consolidated action and costs in the consolidated cause. It argued that both matters, filed in 2018, involved the same respondent, similar questions of law and fact, and the same witnesses, and that consolidation would avoid multiplicity of suits and conserve judicial resources. The Claimant opposed, invoking privity of the two separate employment contracts and his right of access to justice, and contending that his case had already closed; the application, made four years after filing, was a delay tactic. He further noted that oral consolidation applications by both parties had been declined on 28 June 2022 before Ocharo Kebira J and before Dr. Jacob Gakeri J. The court distilled one issue: whether the application had merit. It held that a party seeking consolidation after an inordinate delay must sufficiently explain that delay, and that the supporting affidavit was silent on the four years of inaction. The respondent had been ready to proceed on 28 June 2022, undermining the application's bona fides. The application was found ill prompted and calculated to delay final disposal, and was dismissed with costs. The ruling was delivered electronically under the COVID-19 directions of the Chief Justice, guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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Whether the respondent's application for consolidation of this suit with ELRC Cause Number 897 of 2018 should be granted

Holding

The application failed for want of a timely and sufficient explanation of the four-year delay in seeking consolidation, and appeared designed to delay the trial.

Reasoning

Both suits were filed in 2018 and no consolidation application was made for four years. The supporting affidavit was silent on the delay. The respondent had indicated readiness to proceed at the hearing of 28 June 2022, and only sought consolidation after the claimant's case had closed. The court held that unexplained, inordinate delay disentitles an applicant from the consolidation discretion, and that the application was ill prompted and calculated to delay final disposal.

p. 2

Legal principles established

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  • A party seeking consolidation that does not move timeously must sufficiently explain the delay; absent such explanation, the court's discretion in its favour is unavailable.

Court orders

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  1. 1.The Respondent's application for consolidation of this suit with ELRC Cause Number 897 of 2018 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17, Rule 23(a) and (b)
  • Constitution of Kenya, 2010Article 159(2)(d); Article 48
  • Civil Procedure ActSection 1B (Chapter 21, Laws of Kenya)
  • Civil Procedure RulesOrder 21 Rule 1 (waived for electronic delivery)
Jurisdiction invoked
Rule 17 and 23[a] and [b] 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, "Musyimi v Kobian [Kenya] Limited (Cause 399 of 2018) [2023] KEELRC 650 (KLR)", Case Analysis (2023). Cause No 399 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/650/eng@2023-02-24

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