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ELRCDismissedNot stated in judgment

Mwabado v Surraj Purr Limited (Cause 367 of 2016) [2022] KEELRC 4110 (KLR)

Employment and Labour Relations Court of Kenya
29 September 2022
674 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa, delivered by Agnes Kitiku Nzei J on September 29, 2022, determined the claimant's notice of motion dated March 3, 2022 seeking to set aside orders of February 25, 2022, to reinstate the claimant's suit, and to obtain directions for an early hearing. The suit had been the subject of a notice to show cause issued on November 11, 2021 by the Deputy Registrar under rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, the suit having lain dormant for over one year. On November 25, 2021 the court directed the claimant to file a show-cause affidavit within seven days, failing which the suit would stand dismissed. The claimant did not comply within the period, which lapsed on December 2, 2021, and the affidavit was only filed on December 3, 2021, after the suit had already stood dismissed. The respondent opposed the application through grounds of opposition filed March 30, 2022. The court held that there were in fact no orders of February 25, 2022 capable of being set aside, since its ruling of February 24, 2022 had already recorded the automatic dismissal; a court cannot be called upon to set aside orders that do not exist. The application was accordingly dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court can set aside the orders of February 25, 2022 dismissing the suit for want of prosecution
  2. 2.Whether the claimant's suit should be reinstated

Key legal issues

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01

Whether orders of February 25, 2022 existed and could be set aside

Holding

The court found no orders of February 25, 2022 existed; the suit had automatically stood dismissed on December 2, 2021 upon lapse of the seven-day period for filing the show-cause affidavit, and its ruling of February 24, 2022 so recorded

Reasoning

The Deputy Registrar issued a notice to show cause under rule 16 of the ELRC (Procedure) Rules 2016. On November 25, 2021 the court directed the claimant to file an affidavit within seven days failing which the suit would stand dismissed. The affidavit was filed on December 3, 2021, after the suit had already stood dismissed on December 2, 2021. Consequently there was no subsisting suit and no February 25, 2022 orders capable of being set aside.

p. 2
02

Whether the application dated March 3, 2022 had merit

Holding

The application was found to be without merit and was dismissed with costs

Reasoning

Since the orders sought to be set aside did not exist and the suit had already stood dismissed, the court held that it could not be called upon to set aside non-existent orders. The reinstatement application was therefore incompetent and without merit, attracting costs to the respondent who had opposed it through grounds of opposition filed on March 30, 2022.

p. 2

Legal principles established

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  • A court cannot be asked to set aside orders that do not exist
  • Where a party fails to file a show-cause affidavit within the period ordered, the suit stands dismissed automatically on expiry of that period

Court orders

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  1. 1.The application dated March 3, 2022 is dismissed
  2. 2.Costs of the application are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, rule 16

Relief refused

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Setting aside the orders issued on February 25, 2022

There are no orders of that date capable of being set aside; the suit stood dismissed by operation of the court's earlier order on December 2, 2021

p. 2

Reinstatement of the claimant's suit

The suit had already stood dismissed on December 2, 2021 for failure to file the show-cause affidavit within seven days, so there was no subsisting suit to reinstate

p. 2

Directions for an early hearing date

The suit no longer subsists, rendering directions for hearing moot

Costs of the application

The application was found to be without merit and costs were awarded against the applicant

p. 2

Costs

The application dated March 3, 2022 is hereby dismissed with costs (costs to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This court cannot be called upon to set aside orders that do not exist. The application dated March 3, 2022 is without merit, and is hereby dismissed with costs.
p. 2Final orders - dismissal of reinstatement application
There was no subsisting suit on December 3, 2021 when the claimant purported to file an afidavit on December 3, 2021.
p. 2Automatic dismissal on lapse of the show-cause period
the claimant is hereby directed to file an afidavit within seven (7) days showing cause why suit should not be dismissed for want of prosecution, failing which the suit will stand dismissed.
p. 2Terms of the November 25, 2021 orders

Issues in the judgment

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minor

The judgment records an order for 'mention on December 14, 2022' which appears to be an error for December 14, 2021

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, "Mwabado v Surraj Purr Limited (Cause 367 of 2016) [2022] KEELRC 4110 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4110/eng@2022-09-29

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