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ELRCDismissedNot stated in the judgment (ruling on Notice of Preliminary Objection dated 7th May, 2021 in respect of Notice of Motion dated 26th April, 2021)· [2021] KEELRC 1259 (KLR)

Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (Kudhehia) v Management of Tea Hotel;Ravji Devji Chhabhadia & 3 others (Purchasers/Respondents); Yas Angwan Holdings Limited & another (Proposed Interested Parties [2021] KEELRC 1259 (KLR)

Employment and Labour Relations Court
8 July 2021
2,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a preliminary objection because it required proving facts, not just arguing points of law.

What this practically means

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Executive summary

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The Management of Tea Hotel (respondent/applicant before the court) moved the court by Notice of Motion dated 26th April, 2021 seeking injunctive orders against the respondents over L.R No. Kericho Municipality Block 4/295, orders to compel the Registrar of Lands to cancel entries on the title and set aside a purported transfer or sale, orders requiring the auctioneer Hegeons Auctioneers to file details of the auction, revocation of the auctioneer's licence, and disciplinary action against Advocate Kemboi Gilbert Kiprono under section 56 of the Advocates Act. The claimant/respondent and the purchasers/respondents opposed by Notice of Preliminary Objection dated 7th May, 2021, contending that the application was res judicata in light of prior applications and rulings of 9th October 2018, 3rd April 2020 and 29th January 2021, that the court lacked jurisdiction over the disciplinary orders under sections 18 and 60 of the Auctioneers Act and Advocates Act respectively, and that the application was an abuse of process. The applicant countered that the objection was not a pure point of law. Delivering a ruling, Wasilwa J traced the execution history, observed that the matter had been adjudicated up to the Court of Appeal but that questions remained over the sale of Block 4/295 and unsettled amounts, held that the objection went beyond the Mukisa Biscuit pure-point-of-law test, and dismissed the preliminary objection, leaving the Motion for hearing on merit. No costs order was made.

Key legal issues

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01

Whether the application of 26th April, 2021 is res judicata

Holding

The court declined to determine res judicata on the preliminary objection because the objection raises factual matters that cannot be resolved as a pure point of law

Reasoning

The court reviewed the history of execution proceedings and observed that the matter had been adjudicated up to the Court of Appeal, but found unresolved questions about the execution, the amounts owed, and the impugned sale of Block 4/295. In its view there was 'more than meets the eye' and the preliminary objection could not resolve the matter without an appraisal of pending factual issues.

p. 4
02

Whether the preliminary objection is on a pure point of law

Holding

It is not; it exceeds the Mukisa Biscuit threshold because facts must be discussed and proved

Reasoning

The court applied the Mukisa Biscuit test relied on by the claimant and held that the objection, including its invitation to invoke section 3A inherent jurisdiction and to find abuse of process, required interrogation of facts. Consequently the objection failed and the Notice of Motion remains for hearing on merit.

p. 4
03

Whether the court lacks jurisdiction over disciplinary orders against the advocate and auctioneer

Holding

Not decided on the objection; the court dismissed the objection in its entirety

Reasoning

The claimant argued that disciplinary control over advocates lies with the Advocates Disciplinary Committee and over auctioneers with the Auctioneers Board, while the applicant cited sections 55 and 56 of the Advocates Act and sections 23 and 28 of the Auctioneers Act vesting supervisory power in the court. The court did not make a finding on this limb, dismissing the objection wholesale.

p. 4

Legal principles established

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  • A preliminary objection that requires discussion and proof of facts does not fall within the Mukisa Biscuit test of a pure point of law

Court orders

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  1. 1.The preliminary objection dated 7th May, 2021 is found not merited and dismissed accordingly
Jurisdiction invoked
Inherent jurisdiction of the court over its execution proceedings (Civil Procedure Act, including section 3A invoked by the parties); the judgment does not state an express enabling provision for the suit itself

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 Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (Kudhehia) v Management of Tea Hotel;Ravji Devji Chhabhadia & 3 others (Purchasers/Respondents); Yas Angwan Holdings Limited & another (Proposed Interested Parties [2021] KEELRC 1259 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on Notice of Preliminary Objection dated 7th May, 2021 in respect of Notice of Motion dated 26th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1259/eng@2021-07-08

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