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ELRCDismissedNot stated in judgment

Mumia v Federation of Kenya Employers (Employment and Labour Relations Cause 1571 of 2014) [2024] KEELRC 1098 (KLR)

Employment and Labour Relations Court
9 May 2024
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow's family lost a nearly-won case because they waited seven years and skipped a required legal step to revive it.

What this practically means

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Executive summary

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The Applicant, husband and administrator of the estate of the deceased Claimant, moved the court by Notice of Motion dated 2nd October 2023 under sections 12(3)(i) and (ii) and Rules 17 and 28 of the Employment and Labour Relations Court Act and Article 159 of the Constitution, seeking revival and/or reinstatement of the suit so that he could be substituted for the deceased Claimant and a pending judgment delivered. The suit had been fully heard and was due for judgment on or about 19th October 2016, but the Claimant died on 14th October 2016, five days before delivery, and the suit abated. Grant of letters of administration issued in November 2021, and the application was filed in October 2023. The Respondent filed no response; the application was disposed of by written submissions. The court, applying Order 24 Rule 3 and following the Court of Appeal decision in Rebecca Mijide Mungole v Kenya Power & Lighting Company Ltd, held that where a suit has abated after one year, an applicant must first seek extension of time, or include that prayer with the others; the Applicant's motion sought revival without seeking extension of time and was therefore procedurally defective. The court further found the seven-year delay inordinate and the Applicant's explanation wanting, though it observed he may attempt the correct procedure afresh. The application was dismissed with no orders as to costs.

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 could revive and/or reinstate the abated suit for substitution of the deceased Claimant and delivery of the pending judgment
  2. 2.Whether the Applicant was required to first seek extension of time under Order 24 Rule 3(2) before seeking revival
  3. 3.Whether the inordinate delay of seven years was satisfactorily explained

Key legal issues

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01

Proper procedure for revival of an abated suit under Order 24 Rule 3

Holding

The Applicant was required to seek extension of time first, or in the alternative together with the other prayers, before seeking revival and joinder

Reasoning

Order 24 Rule 3(2) provides that a suit abates where no application is made within one year of the plaintiff's death, with a proviso allowing extension of time for good reason. The Court of Appeal in Rebecca Mijide Mungole held that the sequence must be followed: time must first be extended, then the legal representative joined, then revival sought. The Notice of Motion omitted the extension-of-time prayer, rendering the application incompetent.

p. 3
02

Whether the delay in moving the court was excusable

Holding

The seven-year delay was inordinate and the explanation did not add up

Reasoning

The Claimant died on 14th October 2016; the grant was issued in November 2021 and the application made in October 2023, seven years after death. The Applicant's explanation of a dispersed family regrouping to administer the estate did not justify the leisurely approach, and the wrong procedure was adopted in any event.

p. 3

Legal principles established

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  • A party seeking to revive an abated suit after one year of the death of a sole plaintiff must first obtain an extension of time before applying for joinder and revival

Court orders

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  1. 1.The application dated 2nd October 2023 is dismissed
  2. 2.No orders as to costs

The bench

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

Wrote the judgment

Jurisdiction invoked
Sections 12(3)(i) and (ii), Rules 17 and 28 of the Employment and Labour Relations Court Act and Article 159 of the Constitution 2010

Relief refused

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Revival and/or reinstatement of the suit, substitution of the deceased Claimant and delivery of the pending judgment

The Applicant failed to seek extension of time after the suit abated and approached the court with inordinate, unexplained delay of seven years

p. 3

Costs

No orders as to costs

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.

A proper reading of the above legal position leads me to a conclusion that a party who wishes to revive an abated suit after one year of the demise of the Claimant must first seek an extension of time.
p. 2Procedure for reviving an abated suit
the Applicant has approached this Court leisurely with inordinate delay seven years after the demise of the Claimant his wife.
p. 3Inordinate delay
For reasons advanced above, the Application is found not merited and is hereby dismissed with no orders as to costs.
p. 3Final orders

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, "Mumia v Federation of Kenya Employers (Employment and Labour Relations Cause 1571 of 2014) [2024] KEELRC 1098 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1098/eng@2024-05-09

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