Okiya Omtatah Okoiti &another; v KEMRI Board of Management, Director & 4 others; Salaries and Remuneration Commission(Interested Party) [2019] KEELRC 1946 (KLR)
The bottom line
#The court accepted that activists can sue for workers, but dismissed the case because the same allowance dispute was already before other courts.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioners
The Petitioners, invoking the public interest jurisdiction under Article 22, had standing; the objection was rejected.
The Court held the Article 22 threshold, as interpreted in Mumo Matemo, governs standing in constitutional litigation. The affected employees form an identifiable class of public officers, and remuneration in the public health sector implicates Article 41 and Chapter 12 of the Constitution, engaging public interest. Though organised unions exist and would ordinarily negotiate first, the Court declined to uphold the locus standi objection.
Lis alibi pendens and abuse of process
The Petition was an abuse of court process because the same issues were the subject of concluded litigation (UNRISK v KEMRI) and pending litigation (Edward Githinji & 131 Ors v KEMRI); the Petition was dismissed.
Section 6 of the Civil Procedure Act embodies lis alibi pendens, whose rationale is avoiding inconsistent decisions and judicial embarrassment. The employees on whose behalf the Petition was filed had already sued in Cause No. 1545 of 2018, and the union had obtained a judgment in UNRISK v KEMRI directing implementation of the Circulars; the proper course was execution. The Court also noted res judicata was lurking though not raised.
Costs in public interest litigation
Despite dismissing the Petition for abuse of process, the Court did not award adverse costs and instead ordered each party to bear their own costs.
The Court acknowledged the developed jurisprudence that abuse of court process in public interest litigation normally attracts adverse costs, but in its discretion chose not to apply it on this occasion, ordering each party to bear its own costs.
Legal principles established
#- Locus standi in constitutional and human rights litigation is enlarged and must be assessed case by case on the public interest involved (adopting Mumo Matemo).
- Instituting a second proceeding on the same cause of action already pending before a competent court is an abuse of court process (lis alibi pendens).
- Where the court finds abuse of the court process in public interest litigation, an adverse costs order may be made.
Court orders
#- 1.The Petition is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 22 of the Constitution (public interest enforcement of rights); Article 41 read with Chapter 12 of the Constitution; Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Githinji & 131 others v Kenya Medical Research Institute & 6 others (Cause 1545 of 2018) [2023] KEELRC 2767 (KLR)[2023] KEELRC 2767 (KLR)26 Oct 2023
- Nickson Simitia Isina v District Land Registrar, Kajiado [2021] KEELC 3274 (KLR)[2021] KEELC 3274 (KLR)13 May 2021applied
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti &another; v KEMRI Board of Management, Director & 4 others; Salaries and Remuneration Commission(Interested Party) [2019] KEELRC 1946 (KLR)", Case Analysis (2019). Petition (filed 11 December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1946/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.