Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2024] KEELRC 1360 (KLR)

Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Bollore Transport and Logistics (K) Limited & 2 others (Cause 467 of 2018) [2024] KEELRC 1360 (KLR)

Employment and Labour Relations Court
6 June 2024
MMM. Mbarũ
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to revive a union's dismissed suit because it waited 74 days to explain its absence, showing courts punish unexplained delay.

What this practically means

#

Executive summary

#
The claimant, a workers' union, applied under Order 12 Rule 7 of the Civil Procedure Rules, Sections 1, 1A and 3A of the Civil Procedure Act and Article 159(d) of the Constitution to set aside orders dismissing its suit on 28 November 2023 for non-attendance and want of prosecution. The matter had been fixed for hearing on 28 and 29 November 2023 following a mention on 14 November 2023, during which time the court had earlier extended a six-month prosecution window after the parties indicated settlement negotiations. The claimant's general secretary, James Tongi, explained the non-attendance as arising from an electricity failure affecting internet connectivity, adding that he could not reach the court clerk. The 2nd respondent, through its legal officer Daniel Waiguru, opposed the application, citing the claimant's habitual absences on 4 October 2023 and 9 November 2023, and contending the suit was correctly dismissed. The court framed a sole issue: whether the dismissal orders should be set aside. Applying CMC Holdings Ltd v Nzioki, Thathini Development Company Limited and the Utalii Transport principles, the court found that none of the discretionary factors favoured the claimant: it did nothing on the second hearing day (29 November 2023) and waited 74 days, until 12 February 2024, to file the application, without explaining that intervening period. Given the claimant's history of inaction, the court found no good reason to set aside the dismissal, dismissed the application, and awarded the 2nd respondent the costs of both the application and the dismissed suit.

Key legal issues

#
01

Whether the dismissal orders of 28 November 2023 should be set aside

Holding

The application was dismissed; no good reason was demonstrated for the non-attendance, and the 74-day delay in moving the court was inordinate and unexplained.

Reasoning

The court applied the Utalii Transport principles on dismissal for want of prosecution and found none favoured the claimant. The claimant offered the explanation of an electricity failure affecting internet connectivity, but did nothing on the second allocated hearing day (29 November 2023) and waited 74 days to file the application. The claimant also had a history of inaction, including a ruling giving it six months to prosecute. The court declined to exercise its discretion in the claimant's favour.

p. 4

Legal principles established

#
  • Discretion to set aside orders must be exercised judicially and upon reasons, to avoid injustice from excusable mistake
  • A party seeking to reverse a dismissal for want of prosecution must sufficiently explain why the application is merited

Court orders

#
  1. 1.The application dated 12 February 2024 is dismissed
  2. 2.The 2nd respondent is awarded the costs of the application and of the dismissed suit

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1, 1A and 3A
  • Constitution of KenyaArticle 159(d)

Cases cited (6)

  • Nicholas Kiptoo arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Omwoyo v African Highlands & Produce Co. Limited
    [2002] eKLR
  • Sebel District Administration v Gasyali & others
    (1968) EA
  • CMC Holdings Ltd v Nzioki
    [2004] KLR 173
  • Thathini Development Company Limited v Mombasa Water & Sewerage Company & another
    [2022] eKLR
  • Utalii Transport Company Limited & 3 others v NIC Bank Limited & another
    (2014) eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, Sections 1, 1A and 3A of the Civil Procedure Act and Article 159(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Bollore Transport and Logistics (K) Limited & 2 others (Cause 467 of 2018) [2024] KEELRC 1360 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1360/eng@2024-06-06

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