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ELRCDismissedNot stated in judgment· [2023] KEELRC 3036 (KLR)

Omido v Secretary, Board of Management, Namundera Mixed Secondary School (Petition 31 of 2017) [2023] KEELRC 3036 (KLR)

Employment and Labour Relations Court
29 November 2023
568 words in judgment
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The bottom line

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A Kenyan employment court dismissed a delayed review application, warning that repeatedly litigating settled issues risks being declared a vexatious litigant.

What this practically means

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Kisumu on a Motion dated 5 May 2023 in which the Petitioner, acting in person, sought review of the Court's order and decree of 1 February 2023 dismissing his earlier Notice of Motion, reinstatement of that Motion together with all prayers, and costs in the cause. The Petitioner argued the earlier application had been dismissed on technicalities and that a further affidavit annexing an order of the High Court at Kakamega of 25 September 2009 justified review in furtherance of executing that order. The Respondents filed Grounds of Opposition contending the application was defective, incompetent and filed after inordinate delay. The Court, Radido Stephen J, applied Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, and found no newly discovered evidence, no error on the face of the record and no sufficient reason. The three-month delay in moving for review was unexplained and inordinate. Noting that the Petition itself had been dismissed on 15 March 2018 after a successful Preliminary Objection, the Court found no live or substantive dispute pending to warrant review. It observed that the High Court had on 19 November 2021 barred the Petitioner from filing further applications without leave, warned against vexatious litigation, and cautioned that the Petitioner risked being declared a vexatious litigant. The Motion was dismissed with further costs on 29 November 2023.

Key legal issues

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01

Whether the requirements for review under Rule 33 were met

Holding

The Petitioner failed to establish any of the grounds for review

Reasoning

The review jurisdiction is governed by Rule 33 of the ELRC (Procedure) Rules, 2016, requiring newly discovered evidence, an error on the face of the record, or sufficient reason. The Petitioner showed none of these. The further affidavit annexing a Kakamega High Court order did not amount to newly discovered evidence meriting review, and no error or sufficient reason was demonstrated.

p. 2
02

Whether the application was filed after inordinate delay

Holding

The three-month unexplained delay was inordinate

Reasoning

The Petitioner filed the application three months after the Ruling sought to be reviewed and offered no explanation for the delay despite the Respondents raising the objection. Delay must be assessed case by case, and without explanation the Court found the delay inordinate.

p. 2
03

Whether there was a live dispute warranting review

Holding

There was no live or substantive dispute pending

Reasoning

The Petition had been dismissed in 2018 and the substantive application dismissed on 1 February 2023. Ordering the Respondents to supply minutes of a meeting would serve no legal purpose where the underlying legal action was no longer before the Court for determination.

p. 2
04

Whether the litigation was vexatious and abusive

Holding

The application bordered on abuse of court process

Reasoning

The Petitioner had persistently filed application after application since the Petition's dismissal in March 2018, despite a warning in the Ruling of 4 October 2018 and a High Court order of 19 November 2021 barring further applications without leave. The Court warned the Petitioner he risked being declared a vexatious litigant.

p. 2

Legal principles established

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  • Delay in applying for review must be assessed case by case and unexplained delay of three months constitutes inordinate delay
  • A party who constantly litigates on issues already determined abuses the court process and risks being declared a vexatious litigant

Court orders

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  1. 1.The Motion dated 5 May 2023 is dismissed with further costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review jurisdiction)

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, "Omido v Secretary, Board of Management, Namundera Mixed Secondary School (Petition 31 of 2017) [2023] KEELRC 3036 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3036/eng@2023-11-29

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