Muchira v Lifebank Technology and Logistics Ltd (Cause E376 of 2022) [2023] KEELRC 1077 (KLR)
The bottom line
#Kenya's Employment Court confirmed that once a suit is formally withdrawn, the withdrawal stands and the case cannot be revived.
What this practically means
#Executive summary
#Key legal issues
#Revocability of withdrawal of a suit under Order 25 of the Civil Procedure Rules
Once a suit is withdrawn under Order 25 the withdrawal is effective and the suit cannot be reinstated; the court's earlier order striking off the notice of withdrawal and reinstating the suit was erroneous.
The court traced the common-law and statutory right of a plaintiff to discontinue under Order 25, and authorities (Priscilla Nyambura Njue; Antony Kayaya Juma; Bahati Shee Mwafundi) establishing that no power exists to reinstate a withdrawn suit. On the claimant's own letter of 15th June 2022 the claimant had withdrawn this particular case, not a small claims matter, so the suit was erroneously reinstated.
Whether the court could review its own order under the ELRC (Procedural) Rules, 2016
Yes - section 33 permits review on discovery of new matter or mistake or error apparent on the face of the record, and section 34 even permits correction on the court's own motion.
The court was persuaded that the original order rested on a mistake: the court had been presented with information suggesting two separate cases when in essence it was one and the same case. That mistake furnished sufficient reason under section 33 for the court to review its hitherto issued orders.
Whether the supporting affidavit sworn by an advocate new to the matter was defective
No - the deponent deponed to matters of law, not evidentiary facts, and no evidence was produced as to when he took over conduct of the matter.
The claimant sought striking out of the affidavit on the basis that Nicholas Muturi, advocate, was a stranger to the suit. The court found no proof of when he took over the matter and noted that what he deposed to were matters of law within competence, so no conflict with the rule against advocates deponing to evidentiary facts arose.
Legal principles established
#- A claimant has the right to withdraw or discontinue a claim at any time before judgment, and a suit withdrawn under Order 25 of the Civil Procedure Rules cannot be reinstated.
- A court may review or correct its own order where there is a mistake or error apparent on the face of the record, or discovery of new matter, under section 33 of the ELRC (Procedural) Rules, 2016.
Court orders
#- 1.The orders made on 12th July 2022 striking off the Notice of Withdrawal dated 14th June 2022 are set aside / the notice of withdrawal stands
- 2.The suit dated 6th June 2022 is withdrawn accordingly
- 3.Each party to meet their own costs of the application
- Jurisdiction invoked
- Section 33 of the Employment and Labour Relations Court (Procedural) Rules, 2016 (review of the court's own decree or order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchira v Lifebank Technology and Logistics Ltd (Cause E376 of 2022) [2023] KEELRC 1077 (KLR)", Case Analysis (2023). ELRC Case No. E376 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1077/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.