[2018] KEELRC 549 (KLR)
The Employment and Labour Relations Court held that the High Court lacked jurisdiction to dismiss the suit on 22 June 2016 because the matter had already been transferred to the Employment and Labour Relations Court. The mere fact that the administrative act of physically transferring the file had not been completed...
Source-derived case information.
- Citation
- [2018] KEELRC 549 (KLR)
- Parties
- Applicant: James Kimonye; Respondent: Kenya Meat Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 465 of 2012
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Jurisdiction of Court, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimonye
Applicant
Kenya Meat Commission
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the High Court had jurisdiction to dismiss the suit after it had been transferred to the Employment and Labour Relations Court.
- 2 Whether the dismissal for want of prosecution was valid in the absence of service of Notice to Show Cause.
- 3 Whether the suit should be reinstated for hearing and determination.
Ratio Decidendi
The Employment and Labour Relations Court held that the High Court lacked jurisdiction to dismiss the suit on 22 June 2016 because the matter had already been transferred to the Employment and Labour Relations Court. The mere fact that the administrative act of physically transferring the file had not been completed did not confer jurisdiction on the High Court. Additionally, there was no evidence that a Notice to Show Cause was served on the parties prior to the dismissal, which is a mandatory procedural requirement. Consequently, the dismissal was irregular and the application to set aside the dismissal and reinstate the suit was allowed.
Court Disposition
application allowed; suit reinstated
Orders
- The orders made on 22nd June 2016 dismissing the suit for want of prosecution are set aside.
- The suit is reinstated for hearing and final determination.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 465 OF 2012
(Originally Nairobi High Court Civil Case No. 215 of 2009)
JAMES KIMONYE CLAIMANT
v
KENYA MEAT COMMISSION RESPONDENT
RULING
1. James Kimonye (applicant) moved the High Court in 2009 against Kenya Meat Commission (Respondent) alleging breach of employment contract.
2. On 2 June 2015, the High Court issued an order directing that the suit be transferred to this Court for hearing and determination.
3. On 22 June 2016, the High Court dismissed the Cause herein under Order 17 Rule 2(1) of the Civil Procedure Rules when the Claimant failed to show cause, and this prompted the applicant to move this Court on 29 August 2018 seeking orders
1. THAT the Honourable Court be pleased to set aside the orders made on 22nd June, 2016 dismissing this suit for want of prosecution.
2. THAT the Honourable Court be pleased to re-instate this suit for hearing and final determination.
3. THATthe costs of this application be provided for.
4. Upon service of the application, the Respondent through Josephine Kyalo filed a replying affidavit in opposition to the application, and the Court took arguments on 18 October 2018.
5. The Court has considered the application, the grounds and affidavit in support thereof, the replying affidavit in opposition, the submissions and case law placed before it and come to the conclusion that the application should be allowed on the sole ground that when the High Court dismissed the Cause on 22 June 2016, it had no such jurisdiction, the subject suit having been transferred to this Court.
6. The mere fact that the Deputy Registrar had not performed the administrative act of sending the file over to her counterpart in this Court could not clothe the High Court with jurisdiction to take such a drastic step of dismissing the suit.
7. The Court has also not been able to find any evidence on file that a Notice to Show Cause was served on any of the parties before the dismissal on 22 June 2016.
8. The Court allows the application dated 29 August 2018 and further directs that
(a) The Respondent to file and serve its witness statements and documents before 30 November 2018.
(b) Claimant to forward to Respondent Proposed Issues before 30 November 2018.
(c) If Issues are not agreed/settled by 7 December 2018, the Issues as proposed by the Claimant to be filed as trial Issues.
9. Each party to bear own costs of the application.
10. Considering the age of the Cause, a convenient mention date will be given after this Ruling to give further directions
Delivered, dated and signed in Nairobi on this 23rd day of November 2018.
Radido Stephen
Judge
Appearances
For applicant Mr. Njeru instructed by Muciimi Mbaka & Co. Advocates
For Respondent Ms. Kyalo instructed by Kilukumi & Co. Advocates
Court Assistant Mambo