Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC No. 649 of 2019· [2023] KEELRC 2639 (KLR)

Mohmmed v African Banking Corporation (Cause 43 of 2020) [2023] KEELRC 2639 (KLR)

Employment and Labour Relations Court
26 October 2023
ANAGNES KITIKU NZEI
1,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court reinstated a delayed case as a final second chance, but warned that ignoring court orders can automatically kill a case.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, J) determined the Claimant's amended Notice of Motion dated 14th March 2023 seeking reinstatement of his suit and vacatur of orders made on 28th October 2021. By those earlier orders, the suit had been stayed pending payment to the Respondent of costs of Ksh. 90,550.00 assessed in a related cause, with a self-executing provision that failure to pay within six months would lead to dismissal after a further six months. The Claimant, who had been dismissed from employment in 2018 and was unemployed for five years, paid the costs on 23rd January 2023 (which the Respondent dated 6th February 2023), after the Deputy Registrar's mention notice of 11th January 2023 prompted activity in the matter. The Respondent opposed reinstatement, arguing the suit stood automatically dismissed, that the application invoked inapplicable Civil Procedure Rules, and that the Claimant gave no valid reason for the delay. The Court found the earlier orders were self-executing and reprimanded the Claimant for indolence, noting he made no attempt for over a year to extend the timelines. Nevertheless, invoking Article 159(d) of the Constitution and Section 12(3)(viii) of the Employment and Labour Relations Court Act, the Court overlooked the late filing and procedural flaws, allowed the application, reinstated the suit, directed its prosecution within six months failing which it stands dismissed, and ordered costs of the application to be in the cause.

Key legal issues

#
01

Whether the suit stood dismissed for non-payment of costs within the ordered period

Holding

The self-executing orders of 28th October 2021 meant the suit stood dismissed upon lapse of the prescribed period without payment, and payment made in January/February 2023 was out of time

Reasoning

The Court found that its earlier orders were self-executing: the suit would stand dismissed at a given time upon non-compliance. The Claimant paid the assessed costs after the six-month period had lapsed and only acted after the Deputy Registrar's mention notice of 11th January 2023. The Court emphasised that parties and Counsel must read and understand court orders as made, including their wording, and that non-compliance carries legal consequences.

p. 3
02

Whether the Court should reinstate the suit in the exercise of its discretion

Holding

Yes - the Court allowed the application and reinstated the suit as a final opportunity, overlooking late filing and procedural flaws under Article 159(d)

Reasoning

Despite finding indolence on the Claimant's part and late filing of the application, the Court invoked Article 159(d) of the Constitution and Section 12(3)(viii) of the Employment and Labour Relations Court Act to overlook procedural defects and grant a final chance to access justice, conditional on prosecution of the suit within six months failing which it stands dismissed.

p. 3

Legal principles established

#
  • Court orders are edicts carrying the force of law, and non-compliance carries legal consequences
  • Self-executing orders of dismissal take effect upon lapse of the stipulated period without further order of the Court
  • Justice shall be administered without undue regard to procedural technicalities under Article 159(d)

Court orders

#
  1. 1.The Claimant's suit is reinstated
  2. 2.The suit shall be prosecuted within six (6) months from the date of the Ruling, failing which it shall stand dismissed
  3. 3.Costs of the application shall be in the cause

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 159(d)
  • Employment and Labour Relations Court ActSection 12(3)(viii)
  • Civil Procedure Rulesnull
Jurisdiction invoked
Article 159(d) of the Constitution of Kenya 2010; Section 12(3)(viii) of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohmmed v African Banking Corporation (Cause 43 of 2020) [2023] KEELRC 2639 (KLR)", Case Analysis (2023). ELRC No. 649 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2639/eng@2023-10-26

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