Gregory Mareko & 4 others v National General Secretary Dock Workers Union & 2 others [2014] KEELRC 27 (KLR)
The bottom line
#The Industrial Court refused to reinstate a claim application dismissed for non-prosecution, warning that a refused adjournment means the hearing proceeds with or without you.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the orders of 14th November 2014 dismissing the Claimants' application dated 29th October 2014 for non-prosecution should be set aside and the application reinstated
- 2.Whether the extract of the proceedings of 14th November 2014 showed a faulty or erroneous record
- 3.Whether the reinstatement application was properly brought under the Civil Procedure Act rather than the Industrial Court (Procedure) Rules 2010
Key legal issues
#Whether the dismissal for non-prosecution of 14th November 2014 should be set aside
Dismissal upheld; no grounds for reinstatement. The Claimants' advocate walked out after adjournment was refused, and the reasons advanced for reinstatement (advocate's illness) differed from those given on the hearing day and were unsupported, the treatment card pre-dating the hearing.
The Court found the extract of the proceedings attached to the supporting affidavit was internally inconsistent and faulty. The record showed adjournment was rejected, meaning the hearing had to proceed. The Claimants and their advocate failed to prosecute the application. The illness of Ms. Rajab did not excuse non-attendance, as she was treated on 12th November 2014, two days before the hearing, and the reasons for adjournment differed from those now advanced.
Whether the reinstatement application was properly founded on the Civil Procedure Act
The application was technically defective because it relied entirely on the Civil Procedure Act while the Industrial Court (Procedure) Rules 2010 govern the mechanism to revisit, vary or set aside the Court's decisions, and the Claimants did not explain ignoring those Rules.
The Court noted the Claimants invoked Article 59 of the Constitution and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules 2010. However, the Industrial Court had its own procedural Rules under which it could be moved to revisit, vary or set aside its decisions, and the Claimants offered no explanation for disregarding them, rendering the application defective.
Legal principles established
#- When an application for adjournment is refused, the hearing must proceed and a party cannot later complain of lack of opportunity to be heard after walking out
- Proceedings in the Industrial Court must be brought under the Industrial Court (Procedure) Rules 2010 rather than the Civil Procedure Act where such Rules govern the relief sought
Court orders
#- 1.The Claimants' Application dated 28th November 2014 is refused
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 59 of the Constitution of Kenya; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 21; Order 12 Rule 7 of the Civil Procedure Rules 2010 (as invoked by the Applicants); Industrial Court (Procedure) Rules 2010
Relief refused
#Setting aside the orders of 14th November 2014 and reinstating the application dated 29th October 2014
No grounds to warrant revisiting the orders; the Claimants and their advocate failed to prosecute the application after their adjournment request was rejected, and the application was technically defective for ignoring the Industrial Court (Procedure) Rules 2010
Costs
Costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
When an application for adjournment is refused, it means the hearing must proceed.
There are clearly no grounds to warrant the Court revisiting the orders issued on 14th November 2014.
IT IS ORDERED:(a) The Claimants' Applicant dated 28th November 2014 is refused. (b) Costs in the cause.
The Claimants have not explained why they ignored the Industrial Court (Procedure) Rules 2010, in seeking reinstatement of their Application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gregory Mareko & 4 others v National General Secretary Dock Workers Union & 2 others [2014] KEELRC 27 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/27/eng@2014-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.