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ELRCDismissedApplication dated 19.08.2020 (ruling)· [2020] KEELRC 323 (KLR)

Kenya National Private Security Workers Union v Homeland Security Services Ltd [2020] KEELRC 323 (KLR)

Employment and Labour Relations Court
16 October 2020
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a security business's attempt to overturn a Kshs.733,680 order, ruling the application repeated an earlier settled claim and was an abuse of process.

What this practically means

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Executive summary

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The applicant, through its director Joe Musyimi Mutambu, moved the court by notice of motion dated 19.08.2020 seeking discharge of the judgment of 25.02.2015 and review of the ruling of 25.05.2017 which directed it to deposit Kshs.733,680.00, alleging the ruling was obtained fraudulently by Joshua M. Makori, said to be an unqualified advocate who acted for the claimant union without leave after judgment. The respondent union, through the replying affidavit of Daniel Kilonzo and a preliminary objection, argued the application was incompetent, duplicative of an earlier application dated 28.01.2019 that had been compromised by the consent order of 02.05.2019/13.05.2019, and an abuse of court process. The court held that to the extent the same review prayer had been sought in the earlier application, the present one was an abuse of process; that the applicant knew of the alleged unqualified advocate when it compromised the earlier review and could not now rely on it as a ground for review; and that it was not established that the Makori on the record was Joshua M. Makori, nor was a notice of appointment exhibited. The court corrected a clerical error in the consent order, substituting '28.01.2019' for '20.01.2019'. The application was dismissed with costs in the cause, and parties were left to apply or compromise on the appropriate steps in the suit.

Key legal issues

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01

Abuse of court process

Holding

The review sought duplicated a prayer compromised by the consent order of 02.05.2019

Reasoning

The applicant had earlier sought review of the 25.05.2017 ruling in the application dated 28.01.2019, which was compromised by consent. Renewing the same prayer in the present application, without compliance with the consent terms, amounted to an abuse of process warranting dismissal.

p. 2
02

Fraudulent procurement by an unqualified advocate

Holding

Not established

Reasoning

The record showed Makori appearing for the claimant, but it was not established that he was the same person as Joshua M. Makori, and no notice of appointment of Joshua M. Makori was exhibited. Further, the applicant knew of the allegation before compromising the earlier review and could have raised it then.

p. 2
03

Correction of clerical error in order

Holding

The consent order of 02.05.2019/13.05.2019 erroneously referred to an application dated 20.01.2019; the court corrected the date to 28.01.2019

Reasoning

The parties had appeared before the court and, as is apparent, erroneously submitted that the application dated 28.01.2019 was the application of 20.01.2019 for stay of execution pending appeal, and the consent order captured the wrong date. The court corrected the slip.

p. 2

Legal principles established

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  • An issue known to a party and capable of being raised in an earlier application cannot later found a valid ground for review for want of due diligence
  • Relitigating through a fresh application a prayer already compromised by consent is an abuse of court process

Court orders

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  1. 1.The application dated 19.08.2020 is dismissed
  2. 2.Parties to apply or to compromise on the appropriate steps in the suit
  3. 3.The order given on 02.05.2019 and issued on 13.05.2019 is corrected by deleting '20.01.2019' wherever it appears and inserting '28.01.2019' accordingly
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActRule 33
  • Civil Procedure RulesOrder 9 rule 9
  • Constitution of Kenya, 2010Articles 48 and 50
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court Act, 2011; Order 9 rule 9 of the Civil Procedure Rules; Articles 48 and 50 of the Constitution, 2010

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, "Kenya National Private Security Workers Union v Homeland Security Services Ltd [2020] KEELRC 323 (KLR)", Case Analysis (2020). Application dated 19.08.2020 (ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/323/eng@2020-10-16

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