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ELRCDismissedPetition dated 2020 (Motion dated 13 July 2023)· [2023] KEELRC 2876 (KLR)

Kenya Medical Practitioners, Pharmacists and Dentists Union v County Government of Nyamira (Petition 35 of 2020) [2023] KEELRC 2876 (KLR)

Employment and Labour Relations Court
15 November 2023
RSRadido Stephen
622 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's repeat contempt application against Nyamira County, ruling that a new lawyer cannot revive an already-decided matter.

What this practically means

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Executive summary

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The Union petitioned the County Government of Nyamira in 2020, and judgment was entered by consent on 24 February 2021. By a Motion dated 13 July 2023, through the firm of Mauwa & Co. Advocates, the Union sought leave for the new firm to come on record in place of D.L. Were & Co. Advocates, an order holding the County Secretary of Nyamira County in contempt of the orders of 24 February 2021, his committal to jail for six months or other punishment including purging the contempt, and costs. The Court noted that apart from the prayer for change of advocates, the Motion replicated a previous Union motion dated 3 December 2021 seeking notice to show cause why several county officers should not be committed to civil jail. That earlier application was considered on the merits and dismissed by a Ruling delivered on 18 May 2022, the Court having found that contempt was not demonstrated. The Court held that the new application was an attempt to resurrect a matter already determined, that it was functus officio, and that the Motion was a gross abuse of the court process. The instruction of a new firm of advocates did not alter this; the new firm should have familiarised itself with the file before filing a replica application. The parties also asked the Court to adopt a Return to Work Formula they had signed in lieu of a Ruling, but the Court declined because it had no legal or factual nexus to the original 2020 cause of action. The Motion was dismissed with costs on 15 November 2023.

Key legal issues

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01

Whether the fresh contempt motion was res judicata / an abuse of process

Holding

Yes. It replicated a motion dated 3 December 2021 that was considered on the merits and dismissed on 18 May 2022; the Court is functus officio and the new motion is a gross abuse of process.

Reasoning

The Union's 2021 motion sought identical contempt orders against the Respondent's officers. The Court found on 18 May 2022 that contempt had not been demonstrated and dismissed it. The 2023 motion, filed through new advocates, sought the same substantive relief. A change of advocates does not revive a determined issue, and the new firm should have perused the file before filing a replica application.

p. 3
02

Whether the Return to Work Formula should be adopted by the Court

Holding

No, because it lacks legal and factual nexus to the original 2020 cause of action.

Reasoning

After directions were issued, the parties instead asked the Court to adopt a Return to Work Formula they had signed in lieu of the Ruling. The Court held the formula was unconnected to the initial cause of action presented by the Union in 2020 and declined to adopt it.

p. 3

Legal principles established

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  • A party cannot resurrect, through a fresh motion, an application already considered on the merits and dismissed; instructing a new firm of advocates does not change this
  • Incoming advocates should acquaint themselves with the prior proceedings on the file before filing

Court orders

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  1. 1.The Motion dated 13 July 2023 was dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the petition and contempt of its orders (not expressly stated in the judgment)

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, "Kenya Medical Practitioners, Pharmacists and Dentists Union v County Government of Nyamira (Petition 35 of 2020) [2023] KEELRC 2876 (KLR)", Case Analysis (2023). Petition dated 2020 (Motion dated 13 July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2876/eng@2023-11-15

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