Mwabado v Surraj Purr Limited (Cause 367 of 2016) [2022] KEELRC 4110 (KLR)
The bottom line
#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 court can set aside the orders of February 25, 2022 dismissing the suit for want of prosecution
- 2.Whether the claimant's suit should be reinstated
Key legal issues
#Whether orders of February 25, 2022 existed and could be set aside
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
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.
Whether the application dated March 3, 2022 had merit
The application was found to be without merit and was dismissed with costs
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.
Legal principles established
#- 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
#- 1.The application dated March 3, 2022 is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#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
#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
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
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
Costs
The application dated March 3, 2022 is hereby dismissed with costs (costs to the respondent)
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.
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.
There was no subsisting suit on December 3, 2021 when the claimant purported to file an afidavit on December 3, 2021.
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.
Issues in the judgment
#The judgment records an order for 'mention on December 14, 2022' which appears to be an error for December 14, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.