https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1705

Shabdin v Mater Misericordiae Hospital (Petition E006 of 2026) [2026] KEELRC 1705 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1705 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E006 of 2026 JK Gakeri, J June 22, 2026 Between Dr. Khadija Essa Shabdin Petitioner and Mater Misericordiae Hospital Respondent Judgment 1.On 3rd October 2025, the petitioner filed a Chamber Summons dated 10th January 2025 under Certificate of Urgency seeking orders that the application be certified urgent, heard inter partes and during the vacation. 2.The court directed that the matter be heard inter partes on 20th January 2025, when the court issued directions on service and mention on 10th February 2025 to confirm compliance and a ruling on the application was delivered on 27th march, 2025. 3.The court granted conservatory orders restraining the Respondent from transferring the applicant from the Mater Misericordiae Hospital to Thika Medical Centre and directed the Respondent to reinstate the petitioner to her initial work station pending the hearing and determination of the petition. 4.Notably, no petition was filed together with the application dated 10th January 2025. The respondent filed a Notice of Appointment on 20th January 2025 and Ground of Opposition to the Notice of Motion dated 22nd January 2025 on even date. 5.Shortly thereafter, the Respondent filed a Notice of Motion dated 4th April 2025 seeking the discharge of conservatory order made on 27th March 2025 pending the hearing and determination of the petition but the court found the application unmerited. 6.Subsequently, the petitioner filed a Notice of Motion dated 10th June 2025 under Certificate of Urgency seeking committal of the Respondent’s Chief Executive Officer to Civil jail for contempt of the court’s orders dated 27th March 2025 and the court found the Respondent’s Chief Executive Officer in contempt. The court record reveals that a further application was filed but its fate was unclear from the record and no ruling appear to have been delivered. 7.The Respondent filed its Grounds of Opposition and Replying Affidavit to the petition on 1st July 2025 and hard copies were availed when the court so directed on 14th May 2026. 8.On 14th May 2026, Mr. Bunde for the petitioner informed the court that both parties had filed submissions in respect of the main petition and prayed for a judgment date. Mr Chiuri Ngugi for the Respondent confirmed that that was the position. The court directed the parties to avail hard copies of their documents within 4 days and while the Respondent’s counsel did, the petitioner’s counsel did not. Judgment was slated for 22nd June, 2026. 9.When the court retired to prepare the judgment on 18th May 2026 it could not trace the petitioner’s petition in the file or on the Judiciary’s Case Tracking System (CTS) and sought the Researcher’s assistance who came to the same conclusion as did the Court Assistant on diverse days. 10.Finally, on 18th June 2026 the court painstakingly opened all the documents on the CTS in respect of ELRC PET No. E006 of 2025 and confirmed again that no petition had been filed. In sum, the petitioner had no substantive suit before the court for purposes of judgment. 11.It is trite law that petition is the main suit while applications filed contemporaneously are not. The petition is the foundation of the proceeding and other applications merely support it by ensuring inter alia that the subject matter is maintained or facilitate determination of the petition. 12.Needless to underscore, the petition was the petitioner’s complaint before the court and without it the petitioner had no case for determination. Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (herein after the Mutunga Rules) provide that;1.An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.2.The petition shall disclose the following…” 13.Under Rule 11,i.A petition filed under these rules may be supported by an affidavit. 14.These provisions leave no doubt that the petition is the substantive suit whether supported by an affidavit or not, but all documents intended to be relied upon must be annexed to the affidavit or petition where there is no Supporting Affidavit. 15.Similarly, the provisions of the Employment and Labour Relations Court (Procedure) Rules 2024 provide for the filing of suits in the ELRC.Rule 24 provides;1.A party shall file pleadings electronically and shall within seven days of the filing supply the court with one hard copy of the pleadings or such number of hard copies as the court may direct.2.Each electronic copy and hard copy of pleadings shall be in a bundle properly arranged with a table of contents, paginated and appropriately flagged. 16.These provisions are couched in mandatory tone. Thus, a pleading not filed electronically does not exist under these rules. 17.Although a perusal of the Respondent’s Replying Affidavit reveals that the petitioner served the petition dated 10th January 2025, the petition was not filed on the CTS and the petitioner’s counsel did not avail a copy when the court directed the parties to do so more than one (1) month ago. 18.While procedural omissions which do not implicate the court’s jurisdiction or the root of the dispute or do not occasion miscarriage of justice are remediable under Article 159 of the Constitution of Kenya, failure to file the primary document in a suit cannot be categorised as a procedural lapse. It is the petitioner’s case and without it the petitioner has no complaint before the court for the court to exercise its jurisdiction over.See Nicholas Salat v IEBC & 6 others C/Application No. 225 of 2013. 19.It is trite law that jurisdiction is everything, as exquisitely put by Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex (Oil) Kenya Ltd (1989) eKLR as follows:Jurisdiction is everything. Without it a court has no power to make one more step. When a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…” 20.Flowing from the foregoing, it is discernible that there is nothing for the court to determine and hereby downs its tools for want of a substantive suit.Parties shall bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND JUNE, 2026.DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.