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ELRCDismissedJudicial Review application (Bungoma ELRC); application dated 14th July 2023· [2023] KEELRC 3164 (KLR)

Republic v County Secretary, The County Government of Bungoma & 5 others; Kenya County Government Workers Union Bungoma County Branch (Exparte); General Secretary Kenya County Government Workers Union (Intended Interested Party) (Judicial Review E001 of 2022) [2023] KEELRC 3164 (KLR)

Employment and Labour Relations Court
30 November 2023
JKJemimah Keli
851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court in Bungoma dismissed a union's attempt to join ongoing court proceedings, ruling the judge had already finished the case and could not reopen it.

What this practically means

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Executive summary

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The applicant, through the firm of James Oketch & Company Advocates, sought leave to come on record in place of the firm of Robert Wamalwa & Co Advocates, and to have the Kenya County Government Workers Union joined as a second interested party in judicial review proceedings. The application was supported by an affidavit of James Oketch annexing a notice of appointment by the General Secretary, who contended that under section 2 of the Labour Relations Act the General Secretary is the authorised representative of the union, and that the ex parte applicant had no authority to withdraw the suit. The court observed that judgment in the judicial review application had been entered on 7th July 2022 and that the proceedings were essentially execution proceedings (mandamus under the Government Proceedings Act against a county government) arising from the judgment in Bungoma ELRC No. 1 of 2019. Holding that it was functus officio, the court found that the intended interested party was not a party to the main suit and therefore lacked locus to appear in these incidental proceedings; a stranger to the main suit cannot appear in applications under it. It further held that joinder and change of advocates should have been pursued in the main suit, where J.O Makali Advocates were on record and had not been served. The court declared the application incompetent, dismissed it, made no order as to costs and granted a right of appeal within 30 days.

Key legal issues

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01

Joinder of an interested party in execution proceedings

Holding

The application for joinder was incompetent because the intended interested party was not a party to the main suit giving rise to the execution proceedings

Reasoning

The judicial review application was an execution proceeding under a judgment in Bungoma ELRC 1 of 2019, not a claim for joinder. Interested parties must be joined in the main suit to acquire locus to participate in execution. Order 1 rule 10 CPR governs substitution or addition of parties within a suit, and its conditions were not met in these incidental proceedings.

p. 3
02

Functus officio

Holding

Having delivered judgment on 7th July 2022, the court was functus officio and could not grant the reliefs sought

Reasoning

Judgment in the judicial review application had been entered on 7th July 2022 with no response due from any party. Once judgment is delivered, the court's jurisdiction over the matter is spent and it cannot entertain applications to alter the parties or representation in the concluded proceeding.

p. 3
03

Change of advocates after judgment

Holding

The change of advocates, like joinder, should have been pursued in the main suit, Bungoma ELRC No. 1 of 2019, and the firm currently on record there was not served with this application

Reasoning

The court noted that in the main suit the ex parte applicant is represented by J.O Makali Advocates, who were not served with the instant application, undermining the propriety of the change-of-advocates application in these proceedings.

p. 3

Legal principles established

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  • A court that has delivered judgment becomes functus officio and cannot entertain joinder applications in the concluded proceedings
  • A stranger to the main suit cannot appear in applications arising under that suit; interested parties ought to be joined in the main suit to have locus to participate in execution proceedings

Court orders

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  1. 1.The application dated 14th July 2023 is dismissed
  2. 2.No order as to costs
  3. 3.Right of appeal in 30 days

Authorities

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Legislation

  • Labour Relations Actsection 2
  • Government Proceedings Act
  • Civil Procedure RulesOrder 1 rule 10
Jurisdiction invoked
Inherent jurisdiction over incidental applications in judicial review proceedings; joinder governed by Order 1 rule 10 of the Civil Procedure Rules

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, "Republic v County Secretary, The County Government of Bungoma & 5 others; Kenya County Government Workers Union Bungoma County Branch (Exparte); General Secretary Kenya County Government Workers Union (Intended Interested Party) (Judicial Review E001 of 2022) [2023] KEELRC 3164 (KLR)", Case Analysis (2023). Judicial Review application (Bungoma ELRC); application dated 14th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3164/eng@2023-11-30

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