The ruling herein relates to an application dated 29 July 2025 filed by the claimant. The application is premised on the provisions of section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, seeking an order of review on the ruling delivered on 24 July 2025, which marked the suit as withdrawn. The claimant is also seeking that the suit be reinstated and judgment be delivered on a priority basis.
The application is supported by Wycliffe A. Nyamwata, the general secretary, who avers that the matter came up on 24 April 2025 for judgment, at which the court directed the claimant to file the missing full Memorandum of Claim. This record was filed with the court, but unfortunately, it was stamped with a new date of 25 April 2025, creating confusion about which Memorandum of Claim was correct. In the confusion, the claimant filed a Notice to Withdraw from the suit, not from the original suit filed on 13 August 2024.
Nyamwata avers that the claimant has placed a fresh copy of the Memorandum of Claim dated 11 August 2024. The suit has not been withdrawn. The court's 24 July 2025 ruling should be reviewed to allow the claimant to prosecute the claim on its merits.
The respondent filed grounds of objection, arguing that the claimant's application is an abuse of court process and should be dismissed with costs. The claimant was allowed to file the correct Memorandum of Claim, but instead filed a Notice of Withdrawal dated 30 April 2025. There was no clarity as to which Memorandum of Claim was being withdrawn. Allowing the claimant to proceed on the various claims now on record would be a miscarriage of justice.
Determination
Indeed, the claimant filed the Memorandum of Claim on 11 August 2024. This record was missing key pages. This became apparent when the court was addressing an application dated 27 March 2025 filed by the respondent seeking to stay the scheduled judgment to allow the National Labour Board to complete the balloting process. This application was addressed in the ruling delivered on 24 July 2025, which dismissed it, and the court directed that the suit be marked as withdrawn, having regard to the Notice to Withdraw filed by the claimant on 30 April 2025.
A suit that has been withdrawn terminates it. Unless there are justified grounds to revive it, such a suit does not exist. A similar scenario is addressed in WEMA Foundation Trust Company Limited v County Government of Nairobi & another [2022] KEELC 13306 (KLR), where a party files a Notice to Withdraw suit; such notice should be taken as noted. Unless such notice is filed as an accident, misrepresentation, or fraud, the court must accept the notice.
Although the Employment and Labour Relations Court (Procedure) Rules do not directly address how a party should withdraw or discontinue a suit, Order 25 Rules 1 and 2 of the Civil Procedure Rules provide for both withdrawal before the setting of a date for hearing and where the suit has been set down for hearing. In the latter, the parties may discontinue the suit by consent, or the court may grant the plaintiff leave to discontinue it.
In this case, the claimant’s application is on the basis that there was confusion in filing pleadings. In trying to correct the error apparent on the record, the claim filed to correct was stamped with a new date. To remedy the same, a Notice of Withdrawal was filed, and a new Memorandum of Claim has since been filed.
Indeed, under rules 34 and 35 of the Employment and Labour Relations Court (Procedure) Rules, a party may amend pleadings before they close. After such pleadings have closed, a party may move the court for leave to amend its pleadings. Where a record is misfiled, not filed, or additional documents are found necessary, a party to a suit is guided under the Court Rules.
In this case, the matter was pending judgment, and after pleadings had closed, a crucial record was not filed. The respondent also sought a resolution of the matter by the National Labour Board.
Given the instant application now before the court, it is only fair to allow the claimant to prosecute its suit. However, to set the record straight and to consolidate all the Memorandums of Claim filed, the claimant shall file a single amended Memorandum of Claim, serve the respondent, who shall reply, and hearing directions on the matter shall be issued before the court can deliver judgment as pleaded by the claimant.
Accordingly, the application dated 29 July 2025 is allowed, and the following orders:
a) The suit is hereby reinstated.
b) The claimant shall file an Amended Memorandum of Claim consolidating all the filed claims into a single document.
c) Upon service, the respondent will have the right of reply.
d) Costs to abide by the outcome of the claim.
Delivered in open court at Mombasa on this 29th day of January 2026.
M. MBARŨ
JUDGE