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ELRCDismissedNot stated in the judgment extract· [2021] KEELRC 25 (KLR)

Kenya Shipping Cleaning & Warehouses Workers Union v Vegpro (K) Limited & another [2021] KEELRC 25 (KLR)

Employment and Labour Relations Court
20 December 2021
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reinstate a union's suit because the union ignored court notices and took no steps to move its case for nearly two years.

What this practically means

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Executive summary

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The claimant union, Kenya Shipping and Warehouses Workers Union, filed an application dated 22nd October 2021 seeking to set aside the orders of 18th October 2021 dismissing its suit of 29th May 2017 for want of prosecution and to have the suit reinstated for hearing. It argued that it was never served with any notice to show cause, that the notices were sent to wrong email addresses (kswwunbi@gmail.com and kufaw16@gmail.com) and that COVID-19 downscaling of court operations prevented it from fixing the matter for hearing. The 1st respondent, through the replying affidavit of its Human Resource manager John Matanyi, opposed the application, contending that the claimant had taken no step to prosecute the suit since its filing in 2017, that notices were served, and that the dismissal was proper. The court framed a single issue: whether the dismissal orders of 18th October 2021 should be set aside. It found that notices were issued through the claimant's address on record (kscwwu/kuscwwu@yahoo.com) as confirmed by the claimant's own correspondence, that only the 1st respondent attended the mentions of 21st July 2021, 28th September 2021 and 18th October 2021, and that the claimant had taken no step since the ruling of 18th December 2019. The COVID-19 excuse was rejected as court operations were hybrid from May 2020. The court held no good cause was shown, invoked Rule 16 of the ELRC (Procedure) Rules, 2016, dismissed the application and awarded costs to the 1st respondent.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution on 18th October, 2021 should be set aside

Holding

The application was dismissed; the dismissal was proper because the claimant failed to take any step to prosecute the suit since 18th December, 2019 and showed no good cause

Reasoning

The court invoked Rule 16 of the ELRC (Procedure) Rules, 2016 permitting notice and dismissal where no action is taken for one year. Notices were issued through the claimant's address on record (kuscwwu/kscwwu@yahoo.com) and only the 1st respondent attended the mentions of 21st July 2021, 28th September 2021 and 18th October 2021. The claimant's contention that it was served on wrong email addresses did not displace service through the address on record. The COVID-19 excuse was rejected as operations were hybrid from May 2020.

p. 2
02

Whether service on the email addresses kswwunbi@gmail.com and kufaw16@gmail.com vitiates the dismissal

Holding

No, because notice was also served through the claimant's address on record, kuscwwu@yahoo.com, and the claimant offered nothing against that address

Reasoning

The court retraced the claimant's correspondence of 3rd March 2018, 3rd October 2017 and 20th August 2018 showing the yahoo address. Notices of 12th July 2021 and 28th September 2021 were issued through that address on record. The claimant only contested the gmail addresses and said nothing about the address on record, so service was confirmed.

p. 2

Legal principles established

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  • Where no action has been taken by either party within one year from the date of filing, the Court may issue notice to show cause and, if no reasonable cause is shown, dismiss the suit
  • A party who fails to attend court after notice through its address on record and fails to take steps to prosecute a suit is not a diligent litigant and cannot resist dismissal for want of prosecution

Court orders

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  1. 1.Application dated 22nd October, 2021 dismissed
  2. 2.Costs of the application to the 1st respondent
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 16 (inherent jurisdiction to set aside its own orders; not expressly cited by provision in the extract)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Shipping Cleaning & Warehouses Workers Union v Vegpro (K) Limited & another [2021] KEELRC 25 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/25/eng@2021-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.