James Finlay (Kenya) Limited v Elly Okongo Inganga & 6 others [2019] KEELRC 2356 (KLR)
The bottom line
#A Kenyan court refused to let trade unions join a case about enforcing Scottish court orders because they showed no real, existing stake in the proceedings.
What this practically means
#Executive summary
#Key legal issues
#Test for joinder of an interested party
The test laid down by the Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemo applies: the applicant must show a stake in the proceedings and that it will be affected by the decision either way. The union did not meet it.
The Court applied the Supreme Court's formulation in Mumo Matemo, as further considered in Muruatetu. It held that these proceedings were ancillary to substantive personal injury claims pending in Scotland. The union was not a party to those substantive proceedings and had not sought to join them, so it had no stake in the ancillary adoption proceedings before the Kenyan court. Its interests were merely inchoate and anticipated, and its application was premature.
Whether the union would suffer prejudice absent joinder
No factual or legal prejudice was demonstrated, since the orders sought were positive orders compelling compliance with statutory processes for enforcement of foreign orders and would not bar the Scottish Court from making further locus inspection orders.
The Court distinguished factual from legal prejudice. It noted that the employer's application sought positive orders directing compliance with statutory processes for enforcement of foreign judgments and orders. Any orders made would not preclude the Scottish Courts from issuing further locus inspection orders if the union satisfied the test there. The union, which had only an anticipated or potential litigation interest, therefore could not show it would be prejudiced factually or legally by the proceedings continuing without it.
Effect of failure to file submissions on the joinder application
The requirement for submissions, anchored in section 23(2)(d) of the Supreme Court Act, is a provision particular to that Court and should not be decisive at the level of this Court.
The employer urged that the joinder application be rejected because the union failed to file submissions, relying on the Muruatetu decision. The Court held that the submission requirement relied upon derives from section 23(2)(d) of the Supreme Court Act, a provision specific to that apex Court's procedure, and therefore its breach could not be decisive in the Employment and Labour Relations Court. The application was instead determined on its merits and dismissed for failure to meet the substantive joinder test.
Legal principles established
#- An interested party is one who has a stake in the proceedings and will be affected by the decision of the Court either way
- A party cannot have a stake or identifiable interest in ancillary or interlocutory proceedings where it has not instituted or sought to join the substantive proceedings
- Inchoate interests or rights are insufficient for joinder; an applicant must demonstrate a real, existing interest
Court orders
#- 1.The application dated 31 January 2019 (joinder application) is dismissed with no order as to costs
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court over proceedings seeking adoption and recognition of foreign court orders; the employer invoked Article 159(1) of the Constitution and the Foreign Judgments (Reciprocal Enforcement) Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Finlay (Kenya) Limited v Elly Okongo Inganga & 6 others [2019] KEELRC 2356 (KLR)", Case Analysis (2019). Originating Notice of Motion dated 25 January 2019 (amended 31 January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2356/eng@2019-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.