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ELRCAllowedNot stated in the judgment text provided

Coast Mail Company Limited v Hussein (Appeal E069 of 2022) [2023] KEELRC 1202 (KLR)

Employment and Labour Relations Court
11 May 2023
1,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa (M. Mbaru, Judge) delivered on May 11, 2023 on the appellant's application dated October 13, 2022 seeking stay of, and setting aside of, a ruling delivered on October 6, 2022 by the learned magistrate in Mariakani ELRC No E022 of 2021, in which the appellant's application to file its Memorandum of Response out of time in a claim for unfair termination was dismissed. The appellant explained that its response was forwarded by email, found bulky, and was refused when presented physically at the registry on June 14, 2022, and that counsel lost connection during the June 15, 2022 court session. The respondent opposed, pointing out that leave to file responses out of time had been granted by consent on May 11, 2022 with 14 days to comply, and that no compliance followed. The court agreed with the magistrate that the appellant failed to adhere to the extended timeline and left the period from May 15, 2022 to October 6, 2022 unexplained. However, it held that the right to accept or reject pleadings, whether filed in time or out of time, is a judicial function which registry staff cannot exercise, and that the registry's rejection of the appellant's pleadings impeded access to justice contrary to Article 48 of the Constitution and denied the appellant a fair chance to be heard on the merits. Applying Section 3 of the ELRC Act, 2011, the court allowed the application, set aside the ruling of October 6, 2022, granted the appellant 14 days to file its response under Rule 13, remitted the matter to the trial court, and ordered the appellant to meet the respondent's costs as it was not an innocent party.

Questions the Court framed

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

  1. 1.Whether the appellant gave a plausible explanation for failure to file its Memorandum of Response within the time extended by the trial court on May 11, 2022
  2. 2.Whether the registry staff could lawfully reject pleadings filed out of time on the ground that accepting them would amount to contempt of the May 11, 2022 court orders
  3. 3.Whether the rejection of the appellant's pleadings at the registry denied the appellant a fair hearing and access to justice
  4. 4.Whether the trial court's ruling of October 6, 2022 should be set aside and the appellant allowed to file its response out of time

Key legal issues

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01

Whether the registry's rejection of the appellant's out-of-time pleadings vitiated the trial court's ruling

Holding

Yes. The rejection of pleadings at the registry was an unlawful exercise of a judicial function by administrative staff and denied the appellant a fair chance to be heard on the merits.

Reasoning

The court held that while filing is administrative, acceptance or rejection of pleadings is a judicial function that only a judicial officer may exercise. Registry staff cannot refuse documents on the basis that accepting them would breach court orders, nor send litigants away. That burden would place staff in conflict with litigants and impede access to justice under Article 48. The rejection denied the appellant a fair hearing, and the presiding judicial officer should instead have addressed the timeliness issue in court, expunging the records if there was no good cause or hearing the matter on the merits if there was.

p. 3
02

Whether the appellant's failure to account for the lapse between May 15, 2022 and October 6, 2022 warranted refusing relief

Holding

The lapse was not excused; the appellant is not an innocent party and was denied full relief as to costs, being condemned to pay the respondent's costs, though the substantive relief of being heard on the merits was granted.

Reasoning

The court noted that on the appellant's own chronology, the interim period between the dropped call on June 15, 2022 and the mention of October 6, 2022 was unaccounted for: no action was taken to secure the appellant's right to a hearing, and no response had been filed or attendance made on October 6, 2022. The court balanced this against the appellant's constitutional right to be heard on the merits, setting aside the ruling but requiring the appellant to bear the respondent's costs of the proceedings.

p. 4
03

The overriding objective of the ELRC Act and the constitutional right of access to justice

Holding

ELRC proceedings under the 2016 Procedure Rules must be read with Section 3 of the ELRC Act, 2011, favouring just, expeditious, efficient and proportionate resolution of disputes, which supports hearing the appellant on the merits.

Reasoning

The court invoked Section 3 of the Employment and Labour Relations Court Act, 2011, whose principal objective is to facilitate just, expeditious, efficient and proportionate resolution of disputes, with parties obliged to assist the court and comply with directions. Read with Article 48 access to justice, this objective favoured setting aside the ruling so the appellant could file its response and the dispute be heard on the merits rather than determined on procedural default alone.

p. 3

Legal principles established

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  • The right to accept or reject pleadings or documents, whether filed in time or out of time, is a judicial function reserved to a judicial officer and cannot be exercised by registry staff.
  • Registry staff cannot send a litigant away with their documents on the basis that they have been filed late; to do so would impede access to justice contrary to Article 48 of the Constitution.
  • Whether a document is filed out of time should be addressed by the presiding judicial officer, who may expunge records without good cause or hear the matter on the merits where there is good cause.
  • Access to justice entails giving each party a fair chance to be heard at the earliest.

Court orders

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  1. 1.The ruling delivered on October 6, 2022 in respect of Mariakani ELRC No E022 of 2021 is set aside
  2. 2.The appellant is allowed 14 days from the date of the judgment to file responses out of time in compliance with Rule 13 of the ELRC (Procedure) Rules, 2016
  3. 3.The matter is remitted back to the trial court
  4. 4.The appellant is to meet the respondent's costs of these proceedings
  5. 5.Application dated October 13, 2022 is allowed

The bench

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

majority

Wrote the judgment

On appeal from
Trial court (magistrates' court) – Mariakani ELRC No E022 of 2021
E022 of 2021
Jurisdiction invoked
Rule 8, 13(5) and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Sections 1A, 1B, 3A of the Civil Procedure Act; Articles 50, 48 and 159 of the Constitution

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.

filing of pleadings is an administrative matter addressed at the registry but the right to reject or accept pleadings, documents or any other matter filed in time or out of time is a judicial function.
p. 3Judicial function of accepting or rejecting pleadings
The court stafi placed at the registries cannot send a litigant away with their documents on the basis that they have been filed late.
p. 3Limits on registry staff powers
The upshot of it would be to impede access to justice contrary to Article 48 of the Constitution.
p. 3Access to justice under Article 48
Accordingly, application dated October 13, 2022 is hereby allowed, the appellant has 14 days from the date hereon to comply with Rule 13 of the Employment and Labour Relations Court (Procedure) Rules, 2016 with respect to Mariakani ELRC No 022 of 2021; meet the respondent’s costs herein.
p. 4Final orders / disposition
Matter shall be remitted back to the trial court.
p. 4Remittal to trial court

Issues in the judgment

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minor

Paragraph numbering is duplicated/irregular; two passages are both numbered 17 and several early paragraphs are numbered but blank.

minor

The judgment does not state the appellant's or respondent's names, the title of the case, or the appeal/case number of the present proceedings; the coram identifies only the presiding judge.

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, "Coast Mail Company Limited v Hussein (Appeal E069 of 2022) [2023] KEELRC 1202 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1202/eng@2023-05-11

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