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ELRCAllowedCause No 1772 of 2017· [2023] KEELRC 2765 (KLR)

Omondi & 4 others v Brava Food Industries Limited (Cause 1772 of 2017) [2023] KEELRC 2765 (KLR)

Employment and Labour Relations Court
19 October 2023
OKOcharo Kebira
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court reinstated a dismissed employment case despite a nine-month delay, but ordered the claimants to pay KShs. 20,000 within 21 days or lose the case again.

What this practically means

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Executive summary

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The Claimants filed a Notice of Motion dated 20th December 2022 seeking reinstatement of their employment claim, which was dismissed on 27th April 2022 for want of prosecution. They explained that their counsel could not secure a hearing date because the court registry was prioritising older suits, and that the court's notices of the 1st December 2021 mention and the Notice to Show Cause were sent to an email address on a dormant domain (info@owadvocates.co.ke) that had been unusable since 2018 when the domain name was lost, so counsel never received them. The Respondent opposed, contending the Claimants were indolent, had produced no evidence of the claimed backlog or their follow-up efforts, and had filed the reinstatement application nine months after dismissal. Both sides filed submissions relying on authorities on reinstatement. The court distilled one issue: whether the suit could be reinstated. Reviewing the Utalii Transport principles, the court held that the prime factor is the wider interest of justice, noting the courts' general inclination to determine cases on their merits and asking whether any prejudice could be atoned by costs. Although the nine-month delay in applying for reinstatement was found inordinate, the court allowed the application, reinstating the suit for hearing on merit on condition that the Claimants pay the Respondent thrown away costs of KShs. 20,000 within 21 days, failing which the suit shall stand dismissed. Ocharo Kebira J delivered the ruling virtually at Nairobi on 19th October 2023.

Key legal issues

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01

Whether the dismissed suit should be reinstated for hearing

Holding

Yes - the application for reinstatement was allowed despite inordinate delay, because the wider interest of justice favoured a hearing on the merit, subject to thrown away costs.

Reasoning

The court acknowledged the Utalii Transport principles but held that the prime factor is the wider interest of justice. Although the nine-month delay in applying for reinstatement was inordinate, the court was mindful of the general inclination towards hearing cases on their merits and found that any prejudice could be atoned by an order of costs. Reinstatement was conditional on payment of thrown away costs.

p. 6

Legal principles established

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  • In an application for reinstatement of a suit dismissed for want of prosecution, the prime factor for consideration is the wider interest of justice.

Court orders

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  1. 1.The ruling of 27th April 2022 dismissing the Claimants' suit for want of prosecution is set aside and the suit reinstated for hearing on merit
  2. 2.The Claimants shall pay the Respondent thrown away costs of KShs. 20,000 within 21 days of the ruling
  3. 3.In default of payment of the thrown away costs, the suit shall stand dismissed

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Employment and Labour Relations Act, 2011Section 20(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Advocates (Practice) RulesRule 9

Cases cited (11)

  • Richard Ncharpi Leiyagu vs Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Trade Circles Limited vs Family Bank Limited & another
    [2021] eKLR
  • Hakika Transporters Services Ltd vs Albert Chula Wamimitaire
    [2016] eKLR
  • Salama Beach Ltd vs Mario Rossi
    CA No. 10 of 2015
  • Pattni v. Ali & 2 Others
    CA. No. 354 of 2004 (UR 183/04)
  • Kwacha Communication Limited & another vs Pindoria Holdings Limited & another
    [2022] eKLR
  • Ivita vs Kyumbu
    [1984] KLR 441
  • James Kiplimo Rotich vs Taprandich Chumo
    [2017] eKLR
  • Fran Investments Limited vs G4S Security Services Limited
    [2015] eKLR
  • Utalii Transport Company Limited & 3 others vs NIC Bank & Another
    [2014] eKLR
  • Shah vs Mbogo & Another
    [1967] EA 116
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010, Section 20(1) of the Employment and Labour Relations Act, 2011 and Rule 17 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omondi & 4 others v Brava Food Industries Limited (Cause 1772 of 2017) [2023] KEELRC 2765 (KLR)", Case Analysis (2023). Cause No 1772 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2765/eng@2023-10-19

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