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ELRCAllowedPetition No. 8 of 2016· [2022] KEELRC 27 (KLR)

Mjomba & 22 others v Attorney General (Petition 8 of 2016) [2022] KEELRC 27 (KLR)

Employment and Labour Relations Court
28 April 2022
ANAgnes Kitiku Nzei
1,177 words in judgment
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The bottom line

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Kenya's Employment Court merged two petitions by 35 former Air Force servicemen seeking damages for 1982 detention and torture into one case.

What this practically means

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Executive summary

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This Ruling by the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, J) deals solely with an oral application by the Petitioners' counsel, made at a mention on 24th September 2021, to consolidate Petition No. 8 of 2016 with Petition No. 10 of 2021. The underlying petition, filed on 16th November 2016 by 35 former Kenya Air Force servicemen against the Attorney General, alleges unlawful detention and torture following the coup attempt of 1st August 1982, contrary to Section 74(1) of the Constitution of Kenya 1969 and the Armed Forces Act, seeking declarations and damages. Three Petitioners withdrew on 30th August 2021. The Respondent opposed consolidation on the ground that Petition No. 10 of 2021 had four respondents while the present petition had one, raising possible issues of apportionment of liability. The court, invoking Rule 23 of the ELRC (Procedure) Rules 2016 and applying Law Society of Kenya v Centre for Human Rights & Democracy and Nyati Security Guards, held that the additional respondents - the Defence Council, the Public Service Commission and the Commissioner General of Prisons - are state institutions or officers and no prejudice was demonstrated, so consolidation was desirable, practical and appropriate. It consolidated the petitions with Petition No. 8 of 2016 as lead file, allowed pleadings amendments within thirty days, and set directions for 18th May 2022. No costs order was made. The substantive petition remains pending.

Key legal issues

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01

Whether the two petitions should be consolidated

Holding

Consolidation granted; the petitions are similar in fact, law and reliefs sought, and the extra respondents in Petition No. 10 of 2021 cause no demonstrated prejudice

Reasoning

Rule 23 of the ELRC Procedure Rules 2016 permits consolidation where common questions of fact or law arise or where it is practical and appropriate to proceed simultaneously. Both counsel agreed the petitions are similar; the only difference was the presence of three additional respondents in Petition No. 10 of 2021. The court held those additional respondents are government institutions or officers and that no prejudice was demonstrated, and exercised its wide discretion to consolidate with Petition No. 8 of 2016 as the lead file.

p. 3

Legal principles established

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  • A court may consolidate suits where common questions of fact or law arise and it is practical and appropriate to determine the issues simultaneously; additional respondents in one suit are not a bar absent demonstrated prejudice

Court orders

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  1. 1.Petition Number 8 of 2016 and Petition Number 10 of 2021 are hereby consolidated
  2. 2.The lead file will be Petition No. 8 of 2016
  3. 3.Any party wishing to amend and/or further amend their pleadings to accord with the consolidated character of the Petition may do so within thirty days of this Ruling
  4. 4.The consolidated petition will be mentioned for directions on 18th May 2022

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 23
  • Constitution of Kenya 1969Section 74(1)
  • Kenya Armed Forces Act No. 60 of 1968not specified
  • Prisons Act, Chapter 90 of the Laws of Kenyanot specified

Cases cited (3)

  • Law Society of Kenya v Centre for Human Rights & Democracy & 12 others
    [2014] eKLR
  • Arnold Kipkirui Langat v Atticon Limited & other
    [2021] eKLR
  • Nyati Security Guards & Services Ltd –vs- Municipal Council of Mombasa
    [2000] eKLR
Jurisdiction invoked
Rule 23 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Mjomba & 22 others v Attorney General (Petition 8 of 2016) [2022] KEELRC 27 (KLR)", Case Analysis (2022). Petition No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/27/eng@2022-04-28

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