Kenya Shipping, Clearing Freight Logistics and Warehouse Workers Union v Bollore Transport & Logistics [K] Ltd & 2 others [2023] KEELRC 2852 (KLR)

Kenya Shipping, Clearing Freight Logistics and Warehouse Workers Union v Bollore Transport & Logistics [K] Ltd & 2 others (Cause 467 of 2018) [2023] KEELRC 2852 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2852 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause 467 of 2018

AK Nzei, J

November 9, 2023

Between

Kenya Shipping, Clearing Freight Logistics and Warehouse Workers Union

Applicant

and

Bollore Transport & Logistics [K] Ltd

1st Respondent

Career Directions Limited

2nd Respondent

Sheer Logic Management Consultants Ltd

3rd Respondent

Ruling

1. On 24th March 2022, this Court delivered a Ruling pursuant to a written Notice issued by the Court’s Deputy Registrar on 16th November 2021 under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, and ordered as follows:-a.the Claimant shall prosecute the suit herein within six months of this Ruling, failing which the suit shall stand dismissed for want of prosecution.b.the suit shall be mentioned in Court on 31st March 2022 for pre-trial direction and fixing of a hearing date.

2. When the matter came up in Court on 31/3/2022, the Claimant and the three Counsel representing the 1st, 2nd, and 3rd Respondents told the Court that they intended to engage in negotiations towards amicable settlement of the matter. The Court granted them 30 days to do so, and fixed the matter for mention on 16/5/2022 to record settlement; on which date Mr. Ong’era, appearing on behalf of the Claimant, told the Court that parties had not agreed and needed one more month to conclude negotiations. Counsel for the Respondents agreed with him, and the Court fixed the matter for mention on 16/6/2022 to record settlement.

3. On 16/6/2023, the matter was fixed for hearing on 8/11/2022, on which date Mr. Ong’era, appearing on behalf of the Claimant, informed the Court that the Claimant and the 1st Respondent had agreed to negotiate the matter with a view to settling it; and asked that the matter be mentioned in December 2022. The Court fixed the matter for mention on 8/12/2022 to record settlement. Come 8/12/2022, and Mr. Onge’ra prayed for more time; and the Court fixed the suit for mention on 28/2/2023 to record settlement.

4. On 28/2/2023, Mr. Ong’era informed the Court that parties had not yet agreed, and prayed for one more month to see whether parties would agree. The Court fixed the matter for mention on 9/5/2023 to record settlement. There was no settlement recorded on 9/5/2023, and the Court fixed the suit for hearing on 4/10/2023. When the matter was virtually called out for hearing on 4/10/2023, Counsel appearing for the Respondents submitted that the default clause in this Court’s Ruling delivered on 24/3/2022 had cystalised, and that there was no suit capable of being prosecuted as the same stood dismissed by dint of the said Ruling.

5. On his part Mr. Ong’era, appearing on behalf of the Claimant union, submitted that parties had all along been in Court, and that as a result, the orders dated 24/3/2022 had lapsed.

6. While not agreeing with Mr. Onge’ra on the alleged lapse of the Court’s orders dated 24/3/2022, I take judicial notice of the fact that both the Claimant and the Respondents had agreed to give negotiations a chance, and that this process, as the Court’s record attests, went beyond the six months given to the Claimant on 24/3/2022 to prosecute its case. Alternative dispute resolution mechanism is entrenched not only in the statutes, but in the Constitution of Kenya 2010 as well (Article 159). Disputants who express intention to seek amicable resolution of a dispute cannot be denied an opportunity to do so by the Courts.

7. The Claimant cannot entirely be blamed for having failed to prosecute its case as ordered, in the circumstances. Having said that, and in exercise of the Court’s judicial discretion, I reinstate the Claimant’s case and extent the time ordered on 24/3/2023 by another 6 months from the date of this Ruling.

8. Consequently, I make the following orders:-a.the Claimant shall prosecute its suit herein within six months of this Ruling, failing which it shall stand dismissed for want of prosecution.b.the suit shall be mentioned on 14/11/2023 in Court No. 1 for fixing of a hearing date in that Court.

9. It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 9th NOVEMBER 2023AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGE