Aviation & Airport Services Workers Union (K) v Kenya Airport Authority & another [2014] KEELRC 1167 (KLR)

Reading the Civil Procedure Act, Rules, Industrial Court Act and Rules together, the court found that initial pleadings may be filed by the advocate acting for a party, with capacity indicated in the pleadings themselves. A Notice of Appointment is a requirement only where an advocate takes over a matter already on course, as in Cause No. 1405 of 2012 where the party had acted in person. Here the advocates filed the initial pleadings and indicated they acted for the claimants, so the objection on this ground fails.

Under Rule 16(6) the IP argued orders could not be extended beyond 14 days. The court held that where good grounds exist, and provided the party affected by ex parte orders is given an early hearing, interim orders may be extended judiciously, guided by CMC Holdings Ltd v Nzioki on the need to exercise discretion upon reasons to avoid injustice. The extensions granted here were reasonable and not issued in futility.

It was common ground that Cause No. 689 of 2014, between the same parties and seeking the same orders, was pending when the present application was filed, and that the claimant did not disclose it when obtaining ex parte orders. Relying on Order VII Rule 1(1)(e) CPR and the Ruaha Concrete principles on full and fair disclosure, the court held that filing a duplicate suit during the pendency of an earlier suit, without disclosure, is an abuse of process tantamount to peddling falsehoods under oath, and the offending party must pay costs. Subsequent withdrawal does not cure the mischief.