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ELRCAllowedPetition (judgment delivered 12th July 2019) – number not stated· [2021] KEELRC 2115 (KLR)

Teachers Service Commission v Kenya National Union of Teachers; Secretary /Chief Executive Officer, Teachers Service Commission & another (Contemnors); Cabinet Secretary for Labour and Social Protection & 2 others (Interested Parties) [2021] KEELRC 2115 (KLR)

Employment and Labour Relations Court
19 February 2021
JRJames Rika
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed that unions can join a case even after judgment, so their members' rights are heard before contempt orders issue.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by James Rika, Judge, on 19th February 2021, resolves an application by the Kenya Union of Special Needs Education Teachers (KUSNET), by Notice of Motion dated 22nd January 2021, to be joined as 3rd Interested Party to a Petition in which judgment was delivered on 12th July 2019, and determines whether the Kenya Union of Post Primary Teachers (KUPPET) had already been joined as 2nd Interested Party. The dispute arose because the parties disagreed on whether the judgment had been implemented, prompting contempt applications by KNUT, whose application sought committal of contemnors and a stay of implementation of career progression guidelines issued under circular No. 7 of 2nd May 2018 – a prayer the Court noted had the potential to affect the rights of Unions not party to the original litigation. The Court found no order joining KUPPET on record, and held that while joinder ordinarily precedes or occurs during trial, Superior Courts permit post-judgment joinder where interpretation or execution of a judgment affects non-parties. KUSNET's members, employed by the Petitioner and not eligible to join KNUT, would be shut out of advertised promotions if the stay were granted without hearing them. The Court joined KUPPET and KUSNET as 2nd and 3rd Interested Parties, directed that the contempt application proceed with their participation, and awarded costs in the cause.

Key legal issues

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01

Whether Interested Parties may be joined after judgment

Holding

Yes – post-judgment joinder is permissible where interpretation or execution of a judgment would affect the rights of non-parties

Reasoning

The Court acknowledged the doctrine of finality and that joinder ordinarily occurs before or during trial. However, Superior Courts have held joinder possible at any stage, even on appeal. Here KNUT's contempt application sought a substantive stay of the career progression circular, impinging on the collective rights of Unions not party to the original litigation. To be heard on that prayer, the Unions must first be joined; they cannot be forced into review jurisdiction instead.

p. 3
02

Whether KUPPET had already been joined as 2nd Interested Party

Holding

No order joining KUPPET could be traced

Reasoning

The Court examined the record and typed proceedings up to 30th January 2020, in which KUPPET was still described as an Intended 2nd Interested Party. Since no order of joinder was found, KUPPET's claim that it was already joined could not be sustained, and its joinder was settled together with KUSNET's in this ruling.

p. 3

Legal principles established

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  • Joinder of parties can be done at any stage of the proceedings, including post-judgment, where necessary to protect rights affected by interpretation or execution of a judgment.

Court orders

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  1. 1.KUPPET and KUSNET are joined to the Petition as 2nd and 3rd Interested Parties
  2. 2.Hearing of the application for contempt to proceed with the participation of the Interested Parties
  3. 3.Costs in the cause
Jurisdiction invoked
Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules 2013 (Rule 7) – Petition on fundamental rights and freedoms

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, "Teachers Service Commission v Kenya National Union of Teachers; Secretary /Chief Executive Officer, Teachers Service Commission & another (Contemnors); Cabinet Secretary for Labour and Social Protection & 2 others (Interested Parties) [2021] KEELRC 2115 (KLR)", Case Analysis (2021). Petition (judgment delivered 12th July 2019) – number not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2115/eng@2021-02-19

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