John Wanjala Wanyama v Wanandege Co-operative Savings & Credit Society Ltd [2016] KEELRC 1248 (KLR)

The court held that its constitutive Act and rules govern matters before it, but section 12(1) of the Employment and Labour Relations Court Act requires the court to be guided by any other written law where the Act and Rules are silent or inadequate. Since the change of advocates occurred after judgment had been entered, the Civil Procedure Rules, including Order 9 rule 9(b), were necessary and applicable.

Section 22 of the Employment and Labour Relations Court Act regulates standing. A litigant may act in person, or be represented by a union official or advocate, but such representation is regulated under the Labour Relations Act and the Advocates Act. An advocate cannot enter appearance unless duly qualified, registered with the Law Society of Kenya, and having filed the requisite notice. The consent between M/s Ochieng Opiyo & Co. Advocates and M/s Okundi & Co. Advocates was of no value because Okundi & Co. had ceased to be on record, Lumumba & Lumumba Advocates having replaced them.

The respondent urged that Article 159(2)(d) and section 20 of the Employment and Labour Relations Court Act required the court to disregard procedural technicalities. The court relied on its prior decision in Kenya Building, Construction, Timber & Furniture Industries Employees Union v Newline Furniture Limited and the authorities cited therein, holding that rules of procedure exist for good reason and justice requires due compliance with them. Article 159(2)(d) cannot be invoked in the face of clear statutory provisions.