Jorim Owino Nyamor & another v Kenya Airways Limited [2016] KEELRC 1736 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Abuse of court process / multiplicity of suits
Filing a personal suit while Cause No.433 of 2015, in which the Claimants are grievants in KALPA's counter-claim, still subsists amounts to a multiplicity of suits and abuse of process, warranting striking out in appropriate cases; however, the Court declined to strike out and instead imposed conditions
The Court applied authorities holding that multiplicity of suits obstructs due process and wastes judicial time. The Claimants swore verifying affidavits denying any pending suit involving the same parties and facts, yet admitted Cause No.433 of 2015 existed with them listed as grievants. The Court found their conduct spoke of bad faith and would expose the Respondent to double implications, but balanced this against the unfettered right of an employee to pursue a personal claim, hence conditional leave rather than striking out.
Capacity to withdraw from a union-filed suit
Grievants in a union-filed cause have no capacity to withdraw that suit by writing to the Deputy Registrar; they must move through the union which is the claimant therein
Under the Labour Relations Act and Articles 36 and 41 of the Constitution, employees who join a trade union entrust it with protecting their interests, including upon unfair termination. The Claimants, as grievants not parties, could not unilaterally withdraw Cause No.433 of 2015; the union, as claimant, must receive instructions and cause withdrawal or amendment.
Right of individual employees to sue notwithstanding unionisation
An employee retains the primary right to set out their claim before the Court personally, through an advocate, or through the union; the right of access to justice under Article 50(1) cannot be taken away by a union
The Court acknowledged the constitutional foundation of unionisation under Articles 36 and 41 but held that union representation supplements rather than extinguishes the individual's primary right to litigate. This right is, however, not to be abused, and due process requires that a prior suit on the same facts be resolved or regularised before a new one is filed in the same forum.
Legal principles established
#- Where a trade union has moved the Court and listed employees as grievants, those employees must cause their withdrawal or amendment through the union rather than filing a parallel suit; failure to do so constitutes a multiplicity of suits
- Unionisation and union representation of employees' interests does not cease with termination of employment
- Multiplicity of suits on the same facts and parties is an abuse of court process that courts must stop
Court orders
#- 1.The application by the Respondent dated 2nd December 2015 seeking striking out of the claim as an abuse of process shall not be allowed
- 2.First, the Claimants must move the Court through KALPA under Cause No.433 of 2015, with a counter-claim, to have themselves withdrawn from that suit
- 3.Secondly, the Claimants shall only be heard herein upon filing an order that they have no claim whatsoever under Cause No.433 of 2015
- 4.Thirdly, the Claimants have the option to withdraw the current suit and join Cause No.433 of 2015 and move through their union KALPA
- 5.The Claimants shall meet the costs of the Respondent in this application
- 6.The Claimants shall only move the Court herein upon confirmation of meeting the directions set out
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 22, and the Employment and Labour Relations Court (Procedure) Rules, Rules 4, 5, 6, 14(5) and 16(1) and (5)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Simon Ndungu & another v Kangathia Kiuna & another [2021] KEELC 513 (KLR)[2021] KEELC 513 (KLR)30 Nov 2021applied
- Enos Otieno Auch v East African Portland Cement Company Limited [2019] KEELRC 2024 (KLR)[2019] KEELRC 2024 (KLR)6 Mar 2019
- Republic v Resident Magistrates Court at Kiambu & Another Ex Parte Kenya National Chamber of Commerce and Industry Kiambu County Branch & Others[2017] KEHC 7988 (KLR)3 Feb 2017
- Kenya Airline Pilots Association v Kenya Airways Limited [2016] KEELRC 1747 (KLR)[2016] KEELRC 1747 (KLR)20 Jan 2016
Cite this brief
#Cite this brief
Caselaw, "Jorim Owino Nyamor & another v Kenya Airways Limited [2016] KEELRC 1736 (KLR)", Case Analysis (2016). ELRC Cause (Nairobi), Notice of Motion dated 2nd/3rd December 2015 (linked to ELRC Cause No.433 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1736/eng@2016-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.