[2015] KEELRC 503 (KLR)
The Employment and Labour Relations Court held that it lacked jurisdiction to reinstate a claim dismissed by the High Court for non-prosecution, as there was no subsisting claim capable of being transferred or reinstated. The procedure followed was under the Civil Procedure Act, which does not empower this court to...
Source-derived case information.
- Citation
- [2015] KEELRC 503 (KLR)
- Parties
- Claimant: Munir Abubakar Masoud; Respondent: Kenya Revenue Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 429 of 2015
- Procedural Posture
- Employment Cause / Ruling on Application for Reinstatement After Dismissal for Non Prosecution
- Outcome
- Application for reinstatement dismissed; leave granted to file fresh claim.
- Legal Topics
- Unlawful Retirement, Reinstatement of Dismissed Claim, Civil Procedure in Employment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munir Abubakar Masoud
Claimant
Kenya Revenue Authority
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Reinstatement After Dismissal for Non Prosecution
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to reinstate a claim dismissed by the High Court for non-prosecution.
- 2 Whether a claim dismissed for want of prosecution can be transferred and reinstated in a different court.
- 3 Whether the claimant is entitled to file a fresh claim after dismissal for non-prosecution.
Ratio Decidendi
The Employment and Labour Relations Court held that it lacked jurisdiction to reinstate a claim dismissed by the High Court for non-prosecution, as there was no subsisting claim capable of being transferred or reinstated. The procedure followed was under the Civil Procedure Act, which does not empower this court to revisit or overturn orders of the High Court. However, in the interest of access to justice, the court granted the claimant leave to file a fresh claim within 40 days, as this was the most reasonable way to facilitate his right to be heard on the merits of his employment dispute.
Court Disposition
Application for reinstatement dismissed; leave granted to file fresh claim.
Orders
- High Court Civil Case No. 196 of 2000 shall remain dismissed as ordered by that Court.
- The file be returned to the High Court at Nairobi for preservation.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 429 OF 2015
BETWEEN
MUNIR ABUBAKAR MASOUD…….………………………………. CLAIMANT
VERSUS
KENYA REVENUE AUTHORITY.…………………………………RESPONDENT
RULING
Mr. Munir Abubakar Masoud filed Civil Case Number 196 of 2000 at the High Court in Nairobi, on 7th February 2000.
The Claim was against his former Employer, tax collector Kenya Revenue Authority. He sought orders against his former Employer in the form of declaration that, his retirement in public interest was unlawful and unjustifiable; benefits and accrued salaries be paid dating back to 28th September 1999; damages; costs; and interest.
The Claim was dismissed on 24th February 2015 for non-prosecution.
Mr. Masoud disengaged his Advocates, and acting in person, filed an Application for reinstatement of his Claim.
When that Application went before the High Court which had dismissed the Claim, it was ordered the matter be transferred to the Employment and Labour Relations Court.
The Labour Court in Nairobi then ordered the matter is transferred to Mombasa, where Mr. Masoud resides.
The Application was scheduled for hearing on 7th September 2015 when Ms. Mburugu for the KRA, sought the directions of the Court, based on the following grounds:-
That the order for transfer from the High Court to the Employment and Labour Relations Court issued per incuriam.
There was nothing to transfer, as the substantive Claim had been dismissed for want for prosecution.
The current Court would not have the basis to consider reinstatement.
The Court Finds and Directs:
There was no subsisting Claim capable of being transferred by the High Court to this Court, at the time the order for transfer was made.
The procedure adopted in filing the Claim, in dismissing the Claim, in transferring the dismissed Claim, and in seeking reinstatement is the Civil Procedure.
This Procedure is not entirely in agreement with the Industrial Court (Procedure) Rules, and it is difficult for the Court to revisit the decision of the High Court on transfer, which was based on the Civil Procedure Act. There is no law allowing this Court to revisit orders issued by the High Court.
Mr. Masoud nonetheless should have access to justice. In the view of the Court, the most reasonable way the Court can facilitate him in achieving this access, is as proposed by Ms. Mburugu: vide a fresh Claim filed at the Employment and Labour Relations Court.
IT IS THEREFORE ORDERED:-
High Court Civil Case No. 196 of 2000 shall remain dismissed as ordered by that Court.
The file be returned to the High Court at Nairobi for preservation.
Mr. Masoud is granted the leave of this Court to file a fresh Claim within 40 days of this Order.
Dated and delivered at Mombasa this 28th day of September, 2015
James Rika
Judge