[2014] KEELRC 127 (KLR)
The court held that its previous judgment striking out the suit for being statute barred was based on lack of jurisdiction. No sufficient cause was shown to justify review or setting aside of that judgment. The reasons advanced by the claimant, including the absence of an industrial court in Mombasa and the mistake...
Source-derived case information.
- Citation
- [2014] KEELRC 127 (KLR)
- Parties
- Applicant: Peter Kariuki Njenga; Respondent: Transnick Transporters Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 69 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Motion dismissed without costs.
- Judges
- AN Makau
- Legal Topics
- Review of Judgment, Limitation of Actions, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kariuki Njenga
Applicant
Transnick Transporters Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court should review or set aside its judgment striking out the suit as statute barred.
- 2 Whether the delay in filing the suit due to absence of an industrial court in Mombasa or advocate's mistake constitutes sufficient cause for review.
Ratio Decidendi
The court held that its previous judgment striking out the suit for being statute barred was based on lack of jurisdiction. No sufficient cause was shown to justify review or setting aside of that judgment. The reasons advanced by the claimant, including the absence of an industrial court in Mombasa and the mistake of counsel, do not cure the jurisdictional defect. Since jurisdiction is fundamental and cannot be conferred by the parties or by circumstances such as delay or mistake, the application for review must fail.
Court Disposition
Motion dismissed without costs.
Orders
- The Notice of Motion dated 16.7.2014 is dismissed without costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 69 OF 2013
PETER KARIUKI NJENGA...........................................................CLAIMANT
VERSUS
TRANSNICK TRANSPORTERS LIMITED …...................RESPONDENT
R U L I N G
INTRODUCTION
The Claimant has brought Notice of Motion dated 16. 7.2014 seeking review or setting aside of this court's judgment delivered on 6. 12. 2013. The Motion is supported by the affidavit sworn by the Claimant on 16. 7.2014. The gist of the Motion is that the delay in filing the Suit within the statutory period was not intentional but because there was no industrial court in Mombasa.
The Respondent has opposed the Motion by filing grounds of opposition dated 26. 8.2014. In summary, the respondent contends that the Motion as misconceived, totally defective, bad in law, frivolous and a gross abuse of the process of the court.
The Motion was disposed of by written submissions. The claimant's submissions suggested that the delay to file Suit in time was due to his Advocate's mistake and as such should not be visited on claimant. He is also stating that the delay should be excused because it was for less than 4 months.
The respondent on the other hand has urged that the suit should remain struck out because the court lacks jurisdiction to entertain a time barred suit.
ANALYSIS AND DETERMINATION
Jurisdiction is all what a court has over a dispute. If it has no jurisdiction, the court must down its tools. In the present case, the judgment being reviewed involved the striking out of the suit for being statute barred. No good cause has been shown to justify the review and setting aside of the said judgment. The fact that the delay was due to a mistake or otherwise on the part of the claimant's counsel or because there was no court in Mombasa is neither here nor there. The reason for striking out the suit was due to lack of jurisdiction and no evidence has been produced to prove that the jurisdiction of the court has now been reinstated.
DISPOSITION
For reasons above stated, the Motion under consideration is dismissed without costs.
Dated, signed and delivered this 7th November 2014.
O. N. Makau
Judge