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ELRCDismissedNot stated in judgment (ELRC Milimani cause; related ruling dated 23rd March 2023 and 7th July 2023)· [2023] KEELRC 2987 (KLR)

Kenya Chomical and Allied Workers Union v East Africa Portland Cement & another; Kitumbo & 141 others (Applicant) (Employment and Labour Relations Cause 2119 of 2014) [2023] KEELRC 2987 (KLR)

Employment and Labour Relations Court
17 November 2023
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to reopen a concluded case involving over 650 grievants, ruling it had completed its mandate and execution must proceed elsewhere.

What this practically means

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Executive summary

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Before the Employment and Labour Relations Court at Milimani were four consolidated applications arising from execution of a decree in a matter involving over 650 grievants. Gichuki Kingara & Co Advocates sought dispensation of Jacob Odundo's signature on the joint KCB account for distributing the garnishees' decretal amount, or alternatively execution by the Deputy Registrar. Okatch & Partners sought leave to come on record for 51 grievants, directions that decretal funds for 142 grievants be deposited into the union's bank account, and inclusion in all meetings convened under the court's directions of 17th October 2023 (or a stay of those directions). Jacob Odundo sought enjoinder as an interested party and dismissal of the applications touching on his mandate. The court, presiding over its own cause in first-instance jurisdiction, held that having delivered judgment, issued the decree and granted garnishee orders on 7th July 2023, it had discharged its purpose and was functus officio. Applying HMI vs KBH, Telkom Kenya Ltd vs John Ochanda and John Gilbert Ouma vs Kenya Ferry Services Ltd, it declined to re-open the matter, holding that further execution questions belong to the Deputy Registrar and the grievants' own efforts. Nonetheless, 'for the sake of justice to be seen to be done', the court granted one final facilitative act: parties were given three weeks to agree on sharing the decretal sum, failing which all grievants would assemble in the ceremonial hall for identification with identity documents, with mention on 6th December 2023. All four applications were disallowed. No costs order was made.

Key legal issues

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01

Whether the court is functus officio over post-decree execution disputes

Holding

Yes - the court has discharged its purpose and has no further mandate; further applications are disallowed, execution proceeding under the Deputy Registrar

Reasoning

The court had delivered judgment, issued a decree and executed it through garnishee orders. Having brought the matter to its logical conclusion, further applications on representation or deposit of decretal moneys fall outside its mandate and should proceed before the Deputy Registrar. The court applied the functus officio doctrine as a principle of finality, drawing on HMI vs KBH, Telkom Kenya Ltd vs John Ochanda, and John Gilbert Ouma vs Kenya Ferry Services Ltd.

p. 3
02

Whether the court may nonetheless take a final facilitative step to ensure justice for the grievants

Holding

Yes - the court would take 'one more act for the sake of justice', giving parties three weeks to agree or requiring physical identification of all grievants, with mention on 6th December 2023

Reasoning

Balancing finality against the interest of over 650 grievants, the court declined to re-open the case but offered a single last facilitative step: consensus within three weeks, failing which all grievants would appear in the ceremonial hall with identification documents for identification before distribution of the decretal sum.

p. 4

Legal principles established

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  • The functus officio doctrine prevents a court from re-opening a matter after final judgment and decree, save for appeal
  • The doctrine of functus officio does not bar a court from entertaining a case it has decided but prevents merit-based re-engagement once final judgment is entered and a decree issued

Court orders

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  1. 1.All four applications dated 25th September 2023 (Gichuki Kingara), 2nd November 2023 (Okatch & Partners), 26th October 2023 (Okatch & Partners) and 29th September 2023 (Jacob Odundo) are not entitled - dismissed
  2. 2.The parties are given three weeks to reach consensus on sharing the decretal sum, failing which all grievants will be called to the ceremonial hall for identification with their identification documents
  3. 3.The case to be mentioned on 6th December 2023, when the date of identification will be given if there is no consensus

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (3)

  • HMI vs KBH Family Appeal E016 of 2020
    Family Appeal E016 of 2020
  • Telkom Kenya Limited vs John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited (2014) eKLR
    (2014) eKLR
  • John Gilbert Ouma vs Kenya Ferry Services Limited (2021) eKLR
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction over the cause and execution of its decree; 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 Chomical and Allied Workers Union v East Africa Portland Cement & another; Kitumbo & 141 others (Applicant) (Employment and Labour Relations Cause 2119 of 2014) [2023] KEELRC 2987 (KLR)", Case Analysis (2023). Not stated in judgment (ELRC Milimani cause; related ruling dated 23rd March 2023 and 7th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2987/eng@2023-11-17

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