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ELRCDismissedNot stated in judgment· [2024] KEELRC 422 (KLR)

Muasya v Pembe Flour Mills Limited (Cause E459 of 2023) [2024] KEELRC 422 (KLR)

Employment and Labour Relations Court
29 February 2024
JRJames Rika
743 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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The Claimant moved the Employment and Labour Relations Court by Notice of Motion dated 8th August 2023, seeking that her Claim be set down for formal proof on the ground that the Respondent, though it entered appearance on 7th July 2023, did not file its Statement of Response within the 21 days prescribed by Rule 13(1) of the E&LRC (Procedure) Rules, 2016. The Respondent, through its Advocate Alibhai F. Hassan, explained the delay as arising from meetings held to obtain full instructions and documentation, and filed its Statement of Response and Documents on 17th August 2023. It invoked Article 159(2) of the Constitution and Section 3 of the E&LRC Act, submitting that admitting the Response would prejudice the Claimant in no way. The Court agreed with the Claimant that the 21-day rule had been breached, and held firmly that procedural rules are not mere technicalities but facilitators of substantive justice; regard to the Rules can never be an undue regard. It censured the practice of filing pleadings out of time without leave, noting that a Respondent needing more time may file a holding Statement of Response and later amend. Nevertheless, because a comprehensive Statement of Response with documents was on record, and the dispute turned on contested facts about the Claimant's resignation, the Court held it was not in the interest of justice to proceed with the Claim undefended. It declined the application, admitted the Response out of time, awarded the Claimant Kshs. 15,000 in costs payable before further audience, and directed the parties to schedule pre-trial conferencing.

Key legal issues

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01

Whether late filing of the Statement of Response obliged the Court to proceed to formal proof

Holding

The Court declined formal proof and admitted the Statement of Response out of time, deeming it duly filed and served, because substantive justice favoured an adjudication on the merits, with the breach compensated in costs

Reasoning

The Court accepted that Rule 13(1) prescribes a 21-day period for filing a Statement of Response and that the Respondent breached it. However, it held that procedural rules serve substantive justice and cannot be equated with technicalities to be overlooked. Given that a comprehensive Response with documents had been filed, and the Claim (resignation versus constructive dismissal context) turned on contested facts, it was not in the interest of justice to proceed undefended; the Claimant's prejudice was compensable in costs.

p. 2

Legal principles established

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  • Procedural rules of a court are not procedural technicalities; they facilitate substantive justice and regard to them is never undue regard
  • A Respondent needing more time may file a holding Statement of Response within the prescribed time and bring a fuller response later by amendment, rather than filing pleadings out of time without leave

Court orders

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  1. 1.The Application filed by the Claimant dated 8th August 2023 is declined
  2. 2.The Statement of Response and Documents filed by the Respondent are admitted out of time, and deemed duly filed and served
  3. 3.Costs of Kshs. 15,000 to be paid to the Claimant by the Respondent, before the Respondent can be granted further audience before the Court
  4. 4.Parties to schedule the Claim for pre-trial conferencing
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rules 13(1) and 15(3)

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, "Muasya v Pembe Flour Mills Limited (Cause E459 of 2023) [2024] KEELRC 422 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/422/eng@2024-02-29

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