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ELRCDismissedPetition No 61 of 2014· [2018] KEELRC 1884 (KLR)

Wesley Tomno & 13 others v Registrar of Trade Unions & 3 others [2018] KEELRC 1884 (KLR)

Employment and Labour Relations Court
31 May 2018
675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a union reopen its failed registration case through amendments, confirming you must appeal or file a fresh suit instead.

What this practically means

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Executive summary

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This was a ruling on a Preliminary Objection filed by the Respondents (Registrar of Trade Unions) on 26 January 2018 against the Petitioners' application to amend their Petition. The Petitioners, the proposed Kenya Health Professionals Union, sought mandatory orders compelling the Registrar to register the union and issue a Certificate of Registration in Form B under the Labour Relations Act. The proposed Amended Petition sought to quash the Registrar's decision of 25 September 2014 and to compel registration subject to removing Clinical Officers from the proposed membership. The Respondents objected on five grounds: res judicata under Sections 7 and 8 of the Civil Procedure Act, statutory bar under Section 30 of the Labour Relations Act, public policy, bad-faith disguised appeal, and gross incompetence amounting to abuse of process. The Petitioners filed Grounds of Opposition denying res judicata and asserting jurisdiction under Article 162(2) of the Constitution. Wasilwa J noted that Justice Wa Makau had, by ruling of 29 July 2015, declined registration of the proposed union on the ground that the health sector was already adequately represented by existing unions, and dismissed the application with costs. The court held that the Petition had already been determined and that an amendment could not cure what the ruling addressed. Allowing the Preliminary Objection, the court dismissed the Petitioner's application, observing that the matter could only be pursued through an appeal or a fresh suit. Judgment was delivered on 31 May 2018.

Key legal issues

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01

Res judicata in respect of an application to amend a Petition previously dismissed

Holding

The Preliminary Objection succeeds; the Petition was already determined by Justice Wa Makau's ruling of 29th July 2015 declining registration of the proposed union, and the amendment application is res judicata

Reasoning

The court compared the orders sought in the Petition (compulsory registration of KHPU) with the orders sought in the proposed Amended Petition (quashing of the Registrar's decision and registration). Since Justice Wa Makau had already dismissed the application for registration on the merits, holding the proposed union superfluous, an amendment could not reopen that determination; the only avenues were an appeal or a fresh suit.

p. 2

Legal principles established

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  • A matter already determined by a ruling of the court cannot be revived by amendment to the pleading; the remedy is an appeal or a fresh suit

Court orders

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  1. 1.The Preliminary Objection filed by the Respondents on 26/1/2018 is allowed
  2. 2.The Petitioner's application is dismissed

Authorities

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Legislation

  • Civil Procedure ActSections 7 and 8
  • Labour Relations Act No. 14 of 2007Section 30; 2nd Schedule (Form B)
  • Constitution of KenyaArticle 162(2)
Jurisdiction invoked
Article 162(2) of the Constitution (invoked by Petitioners); Labour Relations Act No. 14 of 2007; Civil Procedure Act Sections 7 and 8

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wesley Tomno & 13 others v Registrar of Trade Unions & 3 others [2018] KEELRC 1884 (KLR)", Case Analysis (2018). Petition No 61 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1884/eng@2018-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.