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ELRCDismissedMiscellaneous Civil Application No. 1 of 2020· [2021] KEELRC 268 (KLR)

Kisii County Government & another v Jackson Moindi Ontegi; Edna Kemunto Okeyo (Proposed Claimant) [2021] KEELRC 268 (KLR)

Employment and Labour Relations Court at Kisumu
8 December 2021
439 words in judgment
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The bottom line

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A Kenyan court dismissed an attempt to join a family member to an already-concluded case, confirming that finished proceedings cannot be revived.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) determines a Chamber Summons dated 3 June 2021 by Edna Kemunto Okeyo, the proposed claimant, in Miscellaneous Civil Application No. 1 of 2020 between Kisii County Government and H.E. James Ongwae (applicants) and Jackson Moindi Ontegi (respondent). The proposed claimant sought a stay of implementation and execution of the judgment pending inter-partes hearing, leave to be enjoined to the suit as a 2nd Plaintiff, a review of the judgment to include her as a judgment creditor alongside the plaintiff, and costs. The respondent filed grounds of opposition; no submissions were filed within the timelines. The Court, having perused the summons, supporting affidavit and the entire file, found the application legally misguided and without merit for two reasons. First, on 25 June 2020 the Court had granted the applicants leave to appeal out of time within 30 days together with a conditional stay of execution on deposit of the decretal sum into a joint interest-earning account of the advocates on record; upon those orders, the miscellaneous proceedings became extinguished, leaving no live proceeding to which the proposed claimant could be joined. Second, the Court had not delivered any judgment capable of being stayed or reviewed, and no judgment was exhibited by the proposed claimant. If the judgment sought to be reviewed was that of the Magistrates Court, the proposed party had approached the wrong forum. The Court dismissed the Chamber Summons with no order on costs, considering that the proposed party and the respondent are family. The judgment was delivered virtually and signed in Kisumu on 8 December 2021.

Key legal issues

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01

Whether a concluded miscellaneous application remains a live proceeding capable of admitting a new party

Holding

The application was legally misguided and without merit because the miscellaneous proceedings were extinguished upon the grant of the orders of 25 June 2020

Reasoning

The Court recalled that on 25 June 2020 it granted the applicants leave to file an appeal out of time within 30 days and a conditional stay on deposit of the decretal sum into a joint interest-earning account. Once those orders issued, the miscellaneous cause had served its purpose and did not survive the ruling, leaving no vehicle for the proposed claimant's joinder or review.

p. 1
02

Whether there was any judgment capable of being stayed or reviewed

Holding

No judgment of this Court had been delivered and none was exhibited; any review of the Magistrates Court judgment lay in the wrong forum

Reasoning

The Court observed that it had not delivered any judgment capable of being stayed or reviewed, that the proposed claimant exhibited no judgment, and that if the target judgment was the Magistrates Court's, the proposed party had approached the wrong forum. The stay and review prayers therefore fell away together with the joinder prayer.

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Legal principles established

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  • Where a court grants leave to appeal out of time with a conditional stay in a miscellaneous proceeding, that proceeding is extinguished and cannot support subsequent joinder or review applications
  • A party seeking to enforce or review a judgment of a subordinate court must approach the correct forum

Court orders

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  1. 1.The Chamber Summons dated 3 June 2021 is dismissed
  2. 2.No order on costs, the proposed party and the Respondent being family
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the pending miscellaneous proceedings (no specific constitutional/statutory provision quoted in the ruling)

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, "Kisii County Government & another v Jackson Moindi Ontegi; Edna Kemunto Okeyo (Proposed Claimant) [2021] KEELRC 268 (KLR)", Case Analysis (2021). Miscellaneous Civil Application No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/268/eng@2021-12-08

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