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ELRCDismissedPetition No E080 of 2021· [2022] KEELRC 38 (KLR)

Benjamin & 3 others v Kenya Medical Practitioners, Pharmacists and Dentists Union & another; Registrar of Trade Unions & 17 others (Interested Parties) (Petition E080 of 2021) [2022] KEELRC 38 (KLR)

Employment and Labour Relations Court
27 April 2022
NMNzioki Wa Makau
1,855 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a union's application because it asked two different courts for the same relief at the same time.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki Wa Makau J) delivered on April 27, 2022 on a Notice of Motion dated March 16, 2022 filed by the 1st Respondent/Applicant, a trade union. The Applicant sought conservatory orders preserving the status quo of the union's registered leadership following elections of May 6, 2021, pending an intended appeal against the court's ruling of March 15, 2022, with costs to abide the appeal. The Applicant, relying on Rule 32(2) of the ELRC (Procedure) Rules and Orders 42 and 51 of the Civil Procedure Rules, argued that the application was filed within 24 hours of the ruling, that the intended appeal raised 8 arguable grounds, and that substantial loss would result, including the Kshs. 10,308,550/- incurred in conducting the impugned elections. The Petitioners opposed, contending that the union officials, having been found not validly elected, lacked authority to appeal on behalf of members, that no substantial loss had been demonstrated, and that the application was an abuse of process because the Applicant had simultaneously sought stay before the Court of Appeal in COAPPL/E477/2021. The court dismissed the motion, holding that pursuing the same relief simultaneously in two courts is an abuse of court process and not an optimal use of scarce judicial time. Costs were awarded to the Petitioners.

Key legal issues

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01

Abuse of court process by parallel applications for the same relief

Holding

The application was dismissed not for lack of merit but because a substantially similar stay application was already pending before the Court of Appeal, making this application a duplication and an abuse of process

Reasoning

The court noted the Applicant itself framed its application as an effort to optimally utilise the scarce judicial time of the appellate court. Having filed a similar motion before the Court of Appeal (COAPPL/E477/2021), pursuing the same relief simultaneously in two fora would waste judicial time and amount to abuse of process, and so the motion had to fail regardless of the arguability of the intended appeal.

p. 4

Legal principles established

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  • A litigant cannot simultaneously pursue the same relief in two courts as that constitutes an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated March 16, 2022 is dismissed
  2. 2.Costs of the application awarded to the Petitioners

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment & Labour Relations Court (Procedure) RulesRule 32(2)
  • Civil Procedure RulesOrder 42 Rule 6; Order 42 Rule 6(2); Order 51 Rule 1

Cases cited (9)

  • RE Global Tours & Travel Ltd
    HCWC No. 43 of 2000 (unreported)
  • Philip Mutinda v Lady Lori (K) Limited
    [2021] eKLR
  • Century Oil Trading Company Ltd v Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Victory Construction v BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Vishram Ravji Halai v Thornton & Turpin Civil
    [1990] KLR 365 (Application No. Nai. 15 of 1990)
  • Loyd Mugambi Maina & 19 others v Kirumi Kiamujari Water Project (Sued through its Registered Trustees/Officials)
    [2022] eKLR
  • Jennifer Njuguna & another v Robert Kamiti Gichuhi
    [2017] eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR
Jurisdiction invoked
Rule 32(2) of the Employment & Labour Relations Court (Procedure) Rules; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules (as invoked by the Applicant)

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, "Benjamin & 3 others v Kenya Medical Practitioners, Pharmacists and Dentists Union & another; Registrar of Trade Unions & 17 others (Interested Parties) (Petition E080 of 2021) [2022] KEELRC 38 (KLR)", Case Analysis (2022). Petition No E080 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/38/eng@2022-04-27

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