Owuor & others ((Suing as the proposers of the proposed union)) v Gicheha & another; Lidigu & 2 others (Interested Parties) (Appeal 26 of 2016) [2023] KEELRC 1390 (KLR)
The bottom line
#The Employment Court dismissed a contempt application against Kenya's Registrar of Trade Unions, ruling the orders were obeyed and re-litigating a pending appeal is an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of May 4, 2018 directing the Registrar to reconsider the registration application were disobeyed
No contempt was made out: the Respondents placed the matter before the Board, considered it and pronounced a decision, thereby complying with the orders
A plain reading of Nduma J.'s decision in the Kisumu appeal showed duplicity of suits; the Respondents complied by placing the matter for consideration and arriving at a decision on the registration. There was another proposed union that had been told coverage was represented by KUPPET. Nothing remained for the Respondents to do under the law on trade unions and the court orders.
Whether the Court could entertain the contempt application given the pending appeal in Kisumu Court of Appeal (COACA/E208/2021)
The Court declined to entertain the application as the matter is res judicata and sub judice, since a new decision may conflict with the Court of Appeal's decision
The Court noted an appeal was pending before the Court of Appeal at Kisumu on the same registration issue. Entertaining the contempt application risked producing a decision conflicting with the appellate court, described as a travesty and patently illegal. The persistence of the litigant in disregarding court rulings on the matter attracted costs on the higher scale.
Whether the application was an abuse of the court process
Yes - the application was baseless, vexatious and an abuse of process, warranting dismissal with costs on the higher scale
The Interested Parties had argued the suit was res judicata and that the Applicant was moving the Court multiple times to the same end, an affront to fair administration of justice. The Court agreed, characterising the application as baseless and vexatious, and penalised the Applicant's persistence with costs on the higher scale.
Legal principles established
#- Once a final decision is made by a court, parties need to move on and the court cannot entertain applications on a matter that is res judicata and pending appeal, as any new decision may conflict with the decision of the appellate court
- Compliance with a court order directing reconsideration of an application is achieved where the respondent duly considered and pronounced a decision on the application
Court orders
#- 1.The contempt application dated March 18, 2022 is dismissed with costs
- 2.Costs awarded on the higher scale due to the persistence of the litigant Jayne Emisembe in disregarding court rulings
- Jurisdiction invoked
- Jurisdiction exercised pursuant to earlier orders of this Court (order of May 4, 2018 and July 17, 2019 by Radido J.) in the underlying trade union registration dispute; contempt jurisdiction invoked by Notice of Motion dated March 18, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owuor & others ((Suing as the proposers of the proposed union)) v Gicheha & another; Lidigu & 2 others (Interested Parties) (Appeal 26 of 2016) [2023] KEELRC 1390 (KLR)", Case Analysis (2023). Not stated in the judgment (directions of March 8, 2023; Notice of Motion dated March 18, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1390/eng@2023-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.