[2015] KEELRC 390 (KLR)
The Court held that the procedure adopted by the parties, seeking to dispose of the entire dispute through an Application that mirrors the main Claim, is contrary to the Industrial Court (Procedure) Rules 2010. The Application was deemed an abuse of court process, as it would render the main Claim redundant and...
Source-derived case information.
- Citation
- [2015] KEELRC 390 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA); Respondent: Diani Beach Resort and Spa
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 330 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application dismissed as abuse of court process
- Judges
- J Rika
- Legal Topics
- Court Procedure, Abuse of Process, Gratuity Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA)
Applicant
Diani Beach Resort and Spa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the Application seeking orders similar to the main Claim is procedurally proper.
- 2 Whether the Application constitutes an abuse of court process.
Ratio Decidendi
The Court held that the procedure adopted by the parties, seeking to dispose of the entire dispute through an Application that mirrors the main Claim, is contrary to the Industrial Court (Procedure) Rules 2010. The Application was deemed an abuse of court process, as it would render the main Claim redundant and create procedural uncertainty regarding the fate of the Claim if the Application were allowed or dismissed. The Court emphasized that the proper course is to proceed with the main Claim in accordance with the established rules and rejected the Application accordingly.
Court Disposition
application dismissed as abuse of court process
Orders
- The Application is rejected for being in abuse of the Court Process.
- Parties shall proceed with the Main Claim in the regular way.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 330 OF 2015
BETWEEN
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS
AND HOSPITAL WORKERS (KUDHEIHA)…..…………………….………..………. CLAIMANT
VERSUS
DIANI BEACH RESORT AND SPA……………….…………………………………RESPONDENT
RULING
The Claimant Union filed a Statement of Claim on 20th May 2015. It seeks to have the Respondent Hotel ordered to pay gratuity to 11 Former Employees, who are Members of the Claimant Union.
Together with the Statement of Claim, the Claimant filed an Application seeking similar orders as sought in the Claim.
Parties thereafter agreed to have the Application disposed of by way of written submissions, which have been placed on the record.
The Court has been asked to make a determination based on these submissions.
The Court Finds:
The Industrial Court (Procedure) Rules 2010, distinguish a Claim, from an Application.
The Court in essence, is being asked to overlook the Claim, and dispose the entire dispute on an Application.
What will happen to the Claim if the Application is dismissed or allowed?
In conclusion, the procedure adopted by parties, is contrary to the Rules of the Court. If they had intended to dispose of the Claim in the manner proposed, there would have been no need of filing the Application.
The Court must consequently reject the Application for being in abuse of the Court Process.
Parties shall proceed with the Main Claim in the regular way.
Dated and delivered at Mombasa this 23rd day of October, 2015
James Rika
Judge