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IndustrialPartially AllowedNot stated in the judgment

Aviation & Allied Workers Union v Kenya Airways (Cause 118 of 2008) [2015] KEIC 1 (KLR)

Industrial Court of Kenya
15 January 2015
644 words in judgment
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The bottom line

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A Kenyan employment court refused to dismiss a delayed case but ordered the indolent claimant to pay costs, warning that delay carries real consequences.

What this practically means

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Executive summary

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This was a ruling on the Respondent/Applicant's Notice of Motion dated 6th October 2014 seeking dismissal of the suit for want of prosecution, supported by the affidavit of Lucy Muhiu and opposed by the Claimant/Respondent through a replying affidavit. Counsel for the applicant (Mr. Burugu) submitted there had been no step in the suit for 1 year 10 months, that the delay was admitted and unexplained, and that no letter had been written to trace the missing file. Counsel for the Claimant (Mr. Kitheka) opposed, arguing there was no rule permitting the application, that civil procedure rules could not be imported, and that the case had proceeded with only submissions and judgment remaining. The Court held that where there is a lacuna in the Industrial Court Rules, it may resort to the Civil Procedure Rules or other permitted procedure, subject to Section 20 of the Industrial Court Act, 2011 on rules of evidence, and therefore the application was properly before it. On the merits, the Court found the Claimant indolent - no submissions were filed after the last order of 30th October 2012 directing oral submissions, and there was no letter seeking to progress the matter. However, as the applicant had not demonstrated service on the Claimant for the 2011 and 2012 mentions, the Court declined to dismiss the suit and instead allowed the Claimant to file the submissions dated 15th August 2012, directing final conclusion of the matter. The Claimant was condemned to pay costs assessed at Kshs. 10,000/-. Judgment delivered at Nairobi on 15th January 2015 by Nzioki Wa Makau, Judge.

Questions the Court framed

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

  1. 1.Whether an application for dismissal of suit for want of prosecution may be brought under Rule 16 of the Industrial Court Rules notwithstanding the absence of an express provision, by resort to the Civil Procedure Rules
  2. 2.Whether the suit should be dismissed for want of prosecution given the inordinate delay and lack of steps taken by the Claimant since October 2012

Key legal issues

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01

Procedural basis for application to dismiss suit for want of prosecution

Holding

The application was properly before the Court notwithstanding the absence of an express rule, as the Court may fall back on the Civil Procedure Rules where the Court's Rules are silent

Reasoning

Counsel for the Claimant argued there was no rule permitting the application and that civil procedure could not be imported. Counsel for the Respondent argued that where there is a lacuna, parties may fall back on civil procedure. The Court adopted the latter position, noting established practice in the Court, subject only to the caveat that rules of evidence are not strictly followed, per Section 20 of the Industrial Court Act, 2011.

p. 2
02

Whether the suit should be dismissed for want of prosecution

Holding

Dismissal was refused; the Claimant was permitted to file the submissions dated 15th August 2012 so the suit could be concluded

Reasoning

There had been inordinate, unexplained delay: the last order was on 30th October 2012 directing oral submissions, and no submissions were ever filed; the Claimant had 'gone to sleep'. However, the Respondent had not demonstrated service of the 2011 and 2012 mentions on the Claimant, and the Court could as well have decided the case without the parties' submissions. Justice therefore favoured concluding the suit rather than dismissing it at the stage of final submissions.

p. 2

Legal principles established

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  • Where there is a lacuna in the Industrial Court Rules, the Court may resort to the Civil Procedure Rules or other permitted rules of procedure, save that the rules of evidence are not strictly followed

Court orders

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  1. 1.The Claimant was allowed to make submissions by way of filing the submissions dated 15th August 2012
  2. 2.The suit was not dismissed for want of prosecution; the matter was to proceed to final conclusion
  3. 3.The Claimant to pay costs assessed at Kshs. 10,000/- to the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Industrial Court Act, 2011 (Section 20) and the Rules of this Court

Relief refused

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Dismissal of the suit for want of prosecution

The Respondent did not demonstrate service on the Claimant for the mentions in 2011 and 2012, and justice favoured final conclusion of the suit at the stage of submissions

p. 2

Costs

The Claimant, having been indolent, to pay costs assessed at Kshs. 10,000/- 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.

In this Court, there is a plethora of decisions made that where there is lacuna in the Rules of this Court the Court may resort to Civil Procedure Rules or other rules of procedure permitted.
p. 2Lacuna in procedure - resort to Civil Procedure Rules
The Claimant has been indolent and as a consequence will pay costs assessed at Kshs. 10,000/- to the Respondent who was forced to make the Application before me.
p. 2Costs for indolence - final orders
The justice of the case supports a final conclusion of the issues herein as opposed to dismissal of the suit at the point of final submissions or judgment delivery.
p. 2Refusal to dismiss suit for want of prosecution
Orders accordingly.
p. 2Disposition

Issues in the judgment

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minor

Roles appear inverted in the heading: the applicant moving for dismissal is described as 'Respondent/Applicant' while the opposing party is 'Claimant/Respondent', yet paragraph 6 refers to 'Mr. Kitheka' appearing for 'Mr. Burugu's' opposite side in a way that suggests possible confusion in attribution of submissions

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, "Aviation & Allied Workers Union v Kenya Airways (Cause 118 of 2008) [2015] KEIC 1 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2015/1/eng@2015-01-15

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