[2016] KEELRC 1795 (KLR)
The court found that the claimants were aware of the limitation issue since 2013 when the respondent filed preliminary objections citing section 90 of the Employment Act, 2007. Despite this, the claimants delayed addressing the issue and only sought to withdraw the causes at the hearing after the respondent insisted...
Source-derived case information.
- Citation
- [2016] KEELRC 1795 (KLR)
- Parties
- Claimant: Gabriel Ojwang; Claimant: Nathan Muiruri; Claimant: Francis Chakai Mulaa; Claimant: Charles Okalo; Respondent: Kali Security Company Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 174, 170, 171 & 173 of 2013
- Procedural Posture
- Employment Cause / Ruling on Withdrawal and Costs After Preliminary Objection
- Outcome
- Application to withdraw consolidated causes allowed with costs to the respondent.
- Judges
- MSA Makhandia
- Legal Topics
- Statutory Limitation Periods, Withdrawal of Suit, Costs Award, Unfair Termination, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Ojwang
Claimant
Nathan Muiruri
Claimant
Francis Chakai Mulaa
Claimant
Charles Okalo
Claimant
Kali Security Company Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Withdrawal and Costs After Preliminary Objection
Legal Issues
- 1 Whether the consolidated causes should be withdrawn at the instance of the claimants after the respondent raised a preliminary objection on limitation of actions.
- 2 Whether the respondent is entitled to costs upon withdrawal of the causes by the claimants.
Ratio Decidendi
The court found that the claimants were aware of the limitation issue since 2013 when the respondent filed preliminary objections citing section 90 of the Employment Act, 2007. Despite this, the claimants delayed addressing the issue and only sought to withdraw the causes at the hearing after the respondent insisted on the preliminary objection being heard first. The court held that this conduct was contrary to the policy of efficient use of judicial time. Consequently, while the court allowed the withdrawal of the causes, it ordered that costs be paid to the respondent to compensate for the unnecessary expenditure of time and resources caused by the claimants' delay and late withdrawal.
Court Disposition
Application to withdraw consolidated causes allowed with costs to the respondent.
Orders
- The consolidated causes are withdrawn at the instance of the claimants.
- The claimants shall pay costs to the respondent.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLKOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 174 OF 2013
GABRIEL OJWANG CLAIMANT
v
KALI SECURITY COMPANY LTD RESPONDENT
consolidated with
CAUSE NO. 170 OF 2013
NATHAN MUIRURI CLAIMANT
v
KALI SECURITY COMPANY LTD RESPONDENT
and
CAUSE NO. 171 OF 2013
FRANCIS CHAKAI MULAA CLAIMANT
v
KALI SECURITY COMPANY LTD RESPONDENT
and
CAUSE NO. 173 OF 2013
CHARLES OKALO CLAIMANT
v
KALI SECURITY COMPANY LTD RESPONDENT
RULING
1. The consolidated Causes herein were filed in Court on 6 June 2013.
2. In Cause No. 170 of 2013 the Claimant alleged that his employment had been unfairly terminated in February 2007. The Claimant in Cause No. 171 of 2013 also pleaded that his employment had been terminated in February 2007.
3. The Claimant in Cause No. 173 of 2013 on his part pleaded that he had been dismissed in 2004, while the Claimant in Cause No. 174 of 2013 alleged unfair termination of employment on 24 February 2007.
4. When the Respondent was served with the Notice of Summons, it filed Notices of Preliminary Objections on 9 October 2013. The objection was on statutory limitation and section 90 of the Employment Act, 2007 was cited.
5. On 12 February 2014, the Claimants filed a joint Amended Memorandum of Claim and the date of alleged accrual of causes of action remained substantially the same.
6. On 9 November 2015, the consolidated Causes were fixed for hearing on 25 January 2016.
7. When the Causes were called for hearing on the scheduled date, the Respondent urged its preliminary objection and in the course of those submissions, the counsel for the Claimants walked in and applied to have the Causes withdrawn.
8. Mr. Githui who appeared for the Respondent did not object but the Court did not issue any orders upon the application to withdraw because it wanted to consider the issue of costs.
9. The Claimants had been put on notice way back in 2013 about the issue of limitation and therefore had ample time to consider the options available to them.
10. Instead of considering the options, the Claimants waited until the Causes were called for hearing and upon being confronted by the Respondent that the preliminary issue be dealt with first, that they applied to have the Causes withdrawn.
11. The approach adopted by the Claimants runs contrary to the policy that precious judicial time should be used wisely and for this reason, the Court will allow the application to withdraw the Causes but with costs to the Respondent. It is so ordered.
Delivered, dated and signed in Nakuru on this 29th day of January 2016.
Radido Stephen
Judge
Appearances
For Claimants Mrs. Ndeda/Ms. Ndeda instructed by Ndeda & Associates
For Respondent Mr. Githui instructed by Githui & Co. Advocates
Court Assistant Nixon