Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment (directions of March 8, 2023; Notice of Motion dated March 18, 2022)· [2023] KEELRC 1390 (KLR)

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)

Employment and Labour Relations Court
16 May 2023
1,842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
This Employment and Labour Relations Court judgment at Nairobi, delivered by Nzioki Wa Makau J on May 16, 2023, determined a Notice of Motion dated March 18, 2022 in which the Appellants sought to cite the 1st Respondent, the substantive holder of the office of the 2nd Respondent (Registrar of Trade Unions), for contempt of the orders of May 4, 2018 and July 17, 2019 directing reconsideration of the Appellants' application for registration of the proposed trade union, with committal to civil jail and a fine as sought reliefs. The Respondents asserted they had complied by communicating that the National Labour Board was considering the registration, that a certificate had been issued to a similar union (KUTVET), and that the matter was sub judice on appeal in Kisumu. The 2nd Interested Party likewise argued the matter was sub judice before the Court of Appeal (COACA/E208/2021), while the Interested Parties raised res judicata and abuse of process. The Court considered Nduma J.'s decision in Kepher Langi Oguwi and held that the orders had been obeyed, there being duplicity of suits and a pronounced decision by the Respondents. With an appeal pending before the Court of Appeal at Kisumu, the Court held it could not entertain the application, the matter being res judicata and sub judice, and dismissed the application as baseless, vexatious and an abuse of the court process, with costs on the higher scale due to the Applicant's persistence.

Key legal issues

#
01

Whether the orders of May 4, 2018 directing the Registrar to reconsider the registration application were disobeyed

Holding

No contempt was made out: the Respondents placed the matter before the Board, considered it and pronounced a decision, thereby complying with the orders

Reasoning

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.

p. 4
02

Whether the Court could entertain the contempt application given the pending appeal in Kisumu Court of Appeal (COACA/E208/2021)

Holding

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

Reasoning

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.

p. 4
03

Whether the application was an abuse of the court process

Holding

Yes - the application was baseless, vexatious and an abuse of process, warranting dismissal with costs on the higher scale

Reasoning

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.

p. 4

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. 1.The contempt application dated March 18, 2022 is dismissed with costs
  2. 2.Costs awarded on the higher scale due to the persistence of the litigant Jayne Emisembe in disregarding court rulings

Authorities

#

Legislation

  • Labour Relations Act, No 14 of 2007, Laws of Kenyasection 12
  • Labour Relations Act, No 14 of 2007, Laws of Kenyasection 13
  • Constitution of Kenya, 2010Article 2
  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 41

Cases cited (4)

  • Seth Panyako & 5 others v Attorney General & 2 others
    [2013] eKLR
  • Kenya Concrete, Structural, Ceramics Tiles, Wood Plys and Interior Designs Workers Union v Registrar of Trade Unions & another
    [2013] eKLR
  • Japheth Anyira Agura & 6 others v Registrar of Trade Unions
    [2014] eKLR
  • Kepher Langi Oguwi (Suing on Behalf of Kenya Union of Technical and Vocational Education Trainers v Registrar of Trade Unions; Kenya Union of Post-Primary Education Teachers (KUPPET) (Interested Party)
    [2019] eKLR
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.