Aviation & Allied Workers Union v Kenya Airways (Cause 118 of 2008) [2015] KEIC 1 (KLR)
The bottom line
#A Kenyan employment court refused to dismiss a delayed case but ordered the indolent claimant to pay costs, warning that delay carries real consequences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application for dismissal of suit for want of prosecution may be brought under Rule 16 of the Industrial Court Rules notwithstanding the absence of an express provision, by resort to the Civil Procedure Rules
- 2.Whether the suit should be dismissed for want of prosecution given the inordinate delay and lack of steps taken by the Claimant since October 2012
Key legal issues
#Procedural basis for application to dismiss suit for want of prosecution
The application was properly before the Court notwithstanding the absence of an express rule, as the Court may fall back on the Civil Procedure Rules where the Court's Rules are silent
Counsel for the Claimant argued there was no rule permitting the application and that civil procedure could not be imported. Counsel for the Respondent argued that where there is a lacuna, parties may fall back on civil procedure. The Court adopted the latter position, noting established practice in the Court, subject only to the caveat that rules of evidence are not strictly followed, per Section 20 of the Industrial Court Act, 2011.
Whether the suit should be dismissed for want of prosecution
Dismissal was refused; the Claimant was permitted to file the submissions dated 15th August 2012 so the suit could be concluded
There had been inordinate, unexplained delay: the last order was on 30th October 2012 directing oral submissions, and no submissions were ever filed; the Claimant had 'gone to sleep'. However, the Respondent had not demonstrated service of the 2011 and 2012 mentions on the Claimant, and the Court could as well have decided the case without the parties' submissions. Justice therefore favoured concluding the suit rather than dismissing it at the stage of final submissions.
Legal principles established
#- Where there is a lacuna in the Industrial Court Rules, the Court may resort to the Civil Procedure Rules or other permitted rules of procedure, save that the rules of evidence are not strictly followed
Court orders
#- 1.The Claimant was allowed to make submissions by way of filing the submissions dated 15th August 2012
- 2.The suit was not dismissed for want of prosecution; the matter was to proceed to final conclusion
- 3.The Claimant to pay costs assessed at Kshs. 10,000/- to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court Act, 2011 (Section 20) and the Rules of this Court
Relief refused
#Dismissal of the suit for want of prosecution
The Respondent did not demonstrate service on the Claimant for the mentions in 2011 and 2012, and justice favoured final conclusion of the suit at the stage of submissions
Costs
The Claimant, having been indolent, to pay costs assessed at Kshs. 10,000/- to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In this Court, there is a plethora of decisions made that where there is lacuna in the Rules of this Court the Court may resort to Civil Procedure Rules or other rules of procedure permitted.
The Claimant has been indolent and as a consequence will pay costs assessed at Kshs. 10,000/- to the Respondent who was forced to make the Application before me.
The justice of the case supports a final conclusion of the issues herein as opposed to dismissal of the suit at the point of final submissions or judgment delivery.
Orders accordingly.
Issues in the judgment
#Roles appear inverted in the heading: the applicant moving for dismissal is described as 'Respondent/Applicant' while the opposing party is 'Claimant/Respondent', yet paragraph 6 refers to 'Mr. Kitheka' appearing for 'Mr. Burugu's' opposite side in a way that suggests possible confusion in attribution of submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aviation & Allied Workers Union v Kenya Airways (Cause 118 of 2008) [2015] KEIC 1 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2015/1/eng@2015-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.