[2024] KEELRC 401 (KLR)
The court held that although the claimant withdrew the claim after the respondents raised a preliminary objection on jurisdiction and exhaustion of internal remedies, there was no evidence of bad faith or abuse of process by the claimant. The withdrawal occurred at an early stage, and the court found no compelling...
Source-derived case information.
- Citation
- [2024] KEELRC 401 (KLR)
- Parties
- Applicant: Dr Adrian Kamotho Njenga; Respondent: Registrar, Administration, Planning and Development Kenya Methodist University; Respondent: Vice Chancellor, Kenya Methodist University; Respondent: Kenya Methodist University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E748 of 2023
- Procedural Posture
- Employment Cause / Ruling on Withdrawal and Costs
- Outcome
- Claim withdrawn; each party to bear their own costs.
- Judges
- L Ndolo
- Legal Topics
- Withdrawal of Claim, Costs Award, Court Discretion, Internal Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Adrian Kamotho Njenga
Applicant
Registrar, Administration, Planning and Development Kenya Methodist University
Respondent
Vice Chancellor, Kenya Methodist University
Respondent
Kenya Methodist University
Respondent
Procedural Posture
Employment Cause / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the claimant should bear costs upon withdrawal of the claim.
- 2 Whether the court should exercise discretion in awarding costs in employment matters.
- 3 Whether the doctrine of exhaustion of internal dispute resolution mechanisms applies.
Ratio Decidendi
The court held that although the claimant withdrew the claim after the respondents raised a preliminary objection on jurisdiction and exhaustion of internal remedies, there was no evidence of bad faith or abuse of process by the claimant. The withdrawal occurred at an early stage, and the court found no compelling reason to penalize the claimant with costs. Exercising its discretion under Section 12(4) of the Employment and Labour Relations Court Act, the court directed that each party should bear their own costs, emphasizing that the peculiar circumstances and the absence of mala fides justified this outcome.
Court Disposition
Claim withdrawn; each party to bear their own costs.
Orders
- The claim and pending applications are marked as withdrawn.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
Njenga v Registrar, Administration, Planning and Development Kenya Methodist University & 2 others (Cause E748 of 2023) [2024] KEELRC 401 (KLR) (28 February 2024) (Ruling)
Neutral citation: [2024] KEELRC 401 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E748 of 2023
L Ndolo, J
February 28, 2024
Between
Dr Adrian Kamotho Njenga
Claimant
and
The Registrar, Administration, Planning and Development Kenya Methodist University
1st Respondent
Vice Chancellor, Kenya Methodist University
2nd Respondent
Kenya Methodist University
3rd Respondent
Ruling
1. The Claimant filed both a Memorandum of Claim and Notice of Motion dated 13th September 2023, alleging unfair labour practices by the Respondents. The Claimant filed a subsequent Notice of Motion dated 27th September 2023 on similar issues.
2. In response, the Respondent filed a notice of Preliminary Objection dated 27th September 2023, challenging the jurisdiction of the Court to entertain the claim and the twin applications in view of the doctrine of exhaustion of internal dispute resolution mechanisms.
3. The Respondents state that the claim offends the requirements of Article 159(2) of the Constitution and Section 9(2) and (4) of the Fair Administrative Action Act.
4. Subsequent to this, the Claimant filed a notice of withdrawal of the claim and the two applications pending in court.
5. While Counsel for the Respondents was not opposed to the withdrawal, she asked for costs and because the parties were unable to agree on this issue, I directed them to address the Court by way of written submissions.
6. In general terms, costs in civil litigation are payable to the successful party and where a party withdraws from the proceedings midstream, the opposite party may ask for costs. Nevertheless, the issue of costs is a matter of discretion to be exercised within the context of the peculiar circumstances of each case.
7. With particular reference to employment matters, Section 12(4) of the Employment and Labour Relations Court Act provides as follows:(4)In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.
8. In this case, it may be argued that the Claimant was jolted by the Respondents’ Preliminary Objection to withdraw his claim, which he ought not to have filed at the time he did. This however is not enough reason to cause the Court to shackle him with the burden of costs.
9. There was no manifestation of any mala fides on the part of the Claimant. Further, he took steps to withdraw the claim at the nascent stages of the case. For this reason, I will exercise discretion in favour of the Claimant and direct that each party will bear their own costs.
10. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY 2024LINNET NDOLOJUDGEAppearance:Ms. Amutabi h/b for Mr. Okatch for the ClaimantMs. Inyanje for the Respondents