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ELRCDismissedMotion dated August 17, 2022 (referencing application dated August 25, 2021, dismissed April 26, 2022)· [2023] KEELRC 876 (KLR)

Public Transport Operators (Workers) Union Kenya v Aramex Kenya Limited & another; Transport and Allied Workers Union (Interested Party) (Cause 2028 of 2017) [2023] KEELRC 876 (KLR)

Employment and Labour Relations Court
14 April 2023
ANAbuodha Jorum Nelson
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a motion dated August 17, 2022, the Claimant/Applicant sought reinstatement and hearing de novo of its contempt application dated August 25, 2021, which the Court had dismissed for want of prosecution on April 26, 2022. The application was supported by an affidavit of Fenus Okonji, who attributed the failure to prosecute to illness and hospitalisation, and argued that the suit would be rendered nugatory if the contempt application was not revived. The 1st Respondent, through Hazel Kamau, opposed, pointing out that Okonji was discharged from Kenyatta National Hospital on January 22, 2022, three months before the dismissal, that hearing notices had been duly served, and that the Claimant had a history of delay. The Interested Party argued the reinstatement application was time barred under Sections 8(1)&(2) and 33 of the ELRC (Procedure) Rules, 2016, and that the sickness ground was unsupported. The Court reviewed the record, noting that directions issued by Wasilwa J on December 20, 2017 maintaining status quo were unclear as to what that status quo was. It held the illness explanation could not account for the delay, since dismissal occurred more than three months after discharge and no continued incapacity was alleged. It found no reasonable explanation for the over six months of inaction on the contempt application. Declining to exercise its discretion in the Claimant's favour, the Court dismissed the motion dated August 17, 2022 with costs and urged the parties to set the five-year-old main claim down for hearing rather than pursue interlocutory applications.

Key legal issues

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01

Whether illness of the deponent justified reinstatement of a contempt application dismissed for want of prosecution

Holding

No; the deponent was discharged on January 22, 2022 while the application was dismissed on April 26, 2022, and no allegation of continued incapacity was made

Reasoning

The Court compared the hospital documents showing discharge on January 22, 2022 with the dismissal date of April 26, 2022, a gap of over three months. Nothing was alleged that the deponent remained on bed rest or unable to perform his duties. The application had also been listed and heard multiple times during and after the illness, with no appearances missed on account of the illness.

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02

Whether the Claimant's history of delay disentitled it to the Court's discretion

Holding

Yes; the matter, filed October 10, 2017, had been delayed over five years through interlocutory applications and the Court declined to exercise its discretion in the Claimant's favour

Reasoning

The Court noted the claim was over five years old and involved time-sensitive issues of check-off forms, union dues and recognition. The contempt application itself lay over six months before dismissal without explanation. The Court deprecated interlocutory applications that prolong straightforward matters and declined relief, dismissing the reinstatement application with costs.

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Legal principles established

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  • A party seeking reinstatement of an application dismissed for want of prosecution must give a reasonable explanation for the delay in prosecuting it.

Court orders

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  1. 1.The application dated August 17, 2022 is dismissed with costs
  2. 2.Parties encouraged to consider the age of the matter and set it down for hearing instead of engaging in time-consuming interlocutory applications

Authorities

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Legislation

  • Employment & Labour Relations Court (Procedure) Rules, 2016Sections 8(1) & (2) and 33
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Sections 8(1)&(2) and 33 (invoked by Interested Party on limitation of the reinstatement application)

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, "Public Transport Operators (Workers) Union Kenya v Aramex Kenya Limited & another; Transport and Allied Workers Union (Interested Party) (Cause 2028 of 2017) [2023] KEELRC 876 (KLR)", Case Analysis (2023). Motion dated August 17, 2022 (referencing application dated August 25, 2021, dismissed April 26, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/876/eng@2023-04-14

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