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ELRCDismissedNot stated in the judgment (ELRC cause filed 21st February 2023)· [2024] KEELRC 2218 (KLR)

Kaiga v Co-operative Bank of Kenya Ltd (Cause E141 of 2023) [2024] KEELRC 2218 (KLR)

Employment and Labour Relations Court of Kenya
18 September 2024
2,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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An employee's unfair termination case was thrown out because he never served summons on the employer and did nothing for over a year.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 21st March 2024 seeking a declaration that the Claimant's unfair termination cause had abated for want of summons to enter appearance, dismissal for want of prosecution, and costs. It was deponed that the suit filed in February 2023 had never been set down for trial through service of summons as required by Rule 11 of the ELRC (Procedure) Rules, 2016, and that no step had been taken to prosecute it for over a year. The Claimant opposed, contending the Respondent entered appearance on 8th March 2023, rendering summons spent, and that the motion relied on wrong provisions and was an abuse of process. The court found it undisputed that no summons were taken out or served; the Claimant furnished no proof of the alleged entry of appearance, and none appeared on the e-filing portal. Applying Rule 11 and, to fill a lacuna, Order 5 Rule 1(6) of the Civil Procedure Rules, 2010, the court held the suit had abated. On want of prosecution, under Rule 16, no action was taken by either party for over one year with no explanation; the Respondent's omission to ground the motion on Rule 16 was not fatal. The court dismissed the suit for want of prosecution and ordered that parties bear their own costs. Judgment was delivered virtually at Nairobi on 18th September 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the suit abated for want of summons

Holding

The suit abated because the Claimant never took out or served summons; mere knowledge of the suit or an alleged memorandum of appearance without proof does not cure this

Reasoning

Rule 11 of the ELRC (Procedure) Rules, 2016 requires a claimant to serve summons with the statement of claim, valid for six months. The court found no summons on the e-filing portal and the Claimant produced no evidence of service. Since the ELRC Rules are silent on the effect of failure to take out summons, the court applied Order 5 Rule 1(6) of the Civil Procedure Rules, under which the suit abates where summons are not collected within thirty days. Non-compliance with mandatory rules is fatal.

p. 4
02

Whether the suit should be dismissed for want of prosecution

Holding

Yes; the suit was dismissed for want of prosecution under Rule 16

Reasoning

Rule 16 permits dismissal where no action has been taken by either party within one year from filing and no reasonable cause is shown. The record showed no activity from filing on 21st February 2023 until the Respondent's application in March 2024; even assuming appearance was entered on 8th March 2023, nothing happened for over a year. The Respondent's omission to ground the motion on Rule 16 was not fatal. The discretionary power was exercised judiciously in favour of dismissal.

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03

Whether the Claimant's argument that the Respondent's entry of appearance rendered summons spent

Holding

Rejected; the Claimant failed to furnish proof of the alleged 8th March 2023 entry of appearance, and in any event no action followed for over a year

Reasoning

The Claimant asserted the Respondent entered appearance on 8th March 2023 but produced no copy of the notice. The court noted the absence of proof and that even on the Claimant's own account, no step was taken by any party between March 2023 and March 2024, satisfying the one-year inactivity threshold under Rule 16.

p. 3

Legal principles established

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  • Rule 11 of the ELRC (Procedure) Rules, 2016 mandatorily requires a claimant to serve summons with the statement of claim, and failure to take out and serve summons is fatal to the suit
  • In the absence of an express provision in the ELRC (Procedure) Rules on the effect of failure to take out summons, the Civil Procedure Rules, 2010 apply to fill the lacuna, and under Order 5 Rule 1(6) the suit abates where summons are not collected within thirty days
  • Where no action is taken in a suit for one year, the court may dismiss it under Rule 16 absent reasonable cause; the power is discretionary and exercised judiciously

Court orders

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  1. 1.A finding that the Claimant's suit abated for failure to take out and serve summons
  2. 2.The Claimant's suit against the Respondent is dismissed for want of prosecution
  3. 3.Parties shall bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016 (Rules 11 and 16) read with the Civil Procedure Act and Civil Procedure Rules, 2010 (Order 5 Rule 1(6), Order 17 Rule 2)

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, "Kaiga v Co-operative Bank of Kenya Ltd (Cause E141 of 2023) [2024] KEELRC 2218 (KLR)", Case Analysis (2024). Not stated in the judgment (ELRC cause filed 21st February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2218/eng@2024-09-18

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