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ELRCStruck OutELRC Petition No. E061 of 2023· [2024] KEELRC 659 (KLR)

Onyango v Special Economic Zones Authority; Chelule (Interested Party) (Employment and Labour Relations Petition E066 of 2023) [2024] KEELRC 659 (KLR)

Employment and Labour Relations Court
20 March 2024
MNMathews Nderi Nduma
882 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Once you file a notice of withdrawal in Kenya, your case is gone for good — the court refused to let the petitioner revive it through an amendment.

What this practically means

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Executive summary

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The respondent and interested party raised preliminary objections seeking striking out of the petition on the grounds that it had been wholly withdrawn by a notice of withdrawal dated 12th April 2023, that the purported amended petition of 17th April 2023 was bad in law, and that the petitioner lacked locus standi under section 12 of the ELRC Act, 2014 and Articles 22 and 258 of the Constitution. A further objection on 19th September 2023 alleged sub judice in view of a similar petition pending in Kisumu. The petitioner contended that the withdrawal related to a suit erroneously filed in Kisumu, while this suit was intended for Nairobi. The court perused the notice of withdrawal and found it expressly covered the Nairobi petition, making no reference to any Kisumu matter, and concluded the petitioner was not candid. Applying PIC Kenya Ltd v Joseph Orrong, the court held that the notice of withdrawal was effective upon filing without court endorsement. The petition was deemed wholly withdrawn and unavailable for hearing or amendment; the amended petition was struck out. The locus standi objection was rendered moot, as was the sub judice objection, since the Nairobi suit no longer existed. The contempt of court application dated 2nd May 2023 also fell away as moot, the suit having been withdrawn after interim orders were issued. Each party was ordered to bear its own costs.

Key legal issues

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01

Effect of a notice of withdrawal filed under Order 25 Rule 1

Holding

The notice of withdrawal dated 12/4/2023 wholly terminated the petition; no court order or endorsement was needed to make it effective

Reasoning

The court perused the notice of withdrawal and found it expressly referred to the present matter at Nairobi, not any Kisumu matter. Relying on PIC Kenya Ltd v Joseph Orrong, withdrawal upon filing the notice is effective without court endorsement. The petitioner could not therefore treat the withdrawn petition as subsisting or amend it; the petitioner also never applied for reinstatement.

p. 3
02

Amendment of a withdrawn petition

Holding

The amended petition dated 17th April 2023 was bad in law and was struck out

Reasoning

A petition that no longer exists cannot be amended. The petitioner, having filed a notice of withdrawal covering the whole petition against the respondent and interested party, proceeded as if the suit still existed. The court upheld the preliminary objection and struck out the purported amendment as an abuse incapable of sustaining a cause of action.

p. 3
03

Sub judice

Holding

The sub judice objection was not determined on the merits because the Nairobi suit no longer existed

Reasoning

The court stated it had no facts before it to establish the existence of the alleged similar suit in Kisumu, but since the Nairobi petition was already held to be non-existent, the sub judice question fell away. The objection was resolved by the prior determination on withdrawal rather than on its own merits.

p. 3

Legal principles established

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  • A notice of withdrawal of a suit takes effect upon filing and does not require the leave of court or a court order to become effective; once withdrawn, the suit is not available for amendment or reinstatement absent an application.

Court orders

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  1. 1.The preliminary objection on withdrawal is upheld; the petition E061 of 2023 is deemed wholly withdrawn and incapable of amendment
  2. 2.The amended petition dated 17th April 2023 is struck out as bad in law
  3. 3.The sub judice objection is not determined as the Nairobi suit is non-existent
  4. 4.The contempt of court application dated 2nd May 2023 is rendered moot
  5. 5.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 258
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure RulesOrder 25 Rule 1

Cases cited (2)

  • Kofinaf Company Limited and another v Nahashon Ngige Nyaga and 20 others
    [2017] eKLR
  • PIC Kenya Ltd v Joseph Orrong
    [2001] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2014, section 12; Articles 22 and 258 of the Constitution of Kenya, 2010 (invoked in the preliminary objection)

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, "Onyango v Special Economic Zones Authority; Chelule (Interested Party) (Employment and Labour Relations Petition E066 of 2023) [2024] KEELRC 659 (KLR)", Case Analysis (2024). ELRC Petition No. E061 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/659/eng@2024-03-20

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