Kenya Hotels & Allied Workers Union v Oak Place Hotel; Akolo Wanyanga & Co Advocates (Intended Interested Party) (Cause 394 of 2018) [2023] KEELRC 3251 (KLR)
The bottom line
#The Employment Court refused to let a union join its former advocate or stop taxation of costs, ruling the case was closed.
What this practically means
#Executive summary
#Key legal issues
#Whether joinder of a third party can be granted after the Court has rendered itself functus officio
The application for joinder was refused as it sought to re-open a closed matter
The Court had on 31st May 2023 declared itself functus officio having delivered judgment on 5th February 2021. An application to join a third party at this stage would, in effect, re-open the concluded matter, which the functus officio doctrine forbids. The joinder application therefore could not stand.
Whether the replying affidavit of Tecla Musimbi Mativa was competent
It was irregular and incompetent because he was not a party to the proceedings
Mativa described himself as one of the Grievants and deponed on the instruction of the advocate firm, but he was not a party to the cause. An affidavit from a non-party on such matters cannot properly be relied upon in the application.
Whether the alleged lack of instructions to Akolo Wanyanga & Co Advocates warranted striking out the Bill of Costs
The dispute as to instructions is an ancillary dispute to be handled as such, and the application was declined
The Claimant argued that the advocate acted without instructions obtained fraudulently by the former 2nd Deputy Secretary General. The Court did not determine the instruction question on its merits, holding it to be an ancillary dispute requiring separate handling rather than determination within this application.
Legal principles established
#- Once a court has delivered judgment and fully rendered itself, it becomes functus officio and cannot entertain applications that would effectively re-open the concluded matter
- A replying affidavit sworn by a person who was not a party to the proceedings is irregular and incompetent
Court orders
#- 1.The Claimant's application dated 3rd October 2023 is declined
- 2.Each party will bear their own costs
- Jurisdiction invoked
- Original and inherent jurisdiction of the Employment and Labour Relations Court over its own proceedings (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels & Allied Workers Union v Oak Place Hotel; Akolo Wanyanga & Co Advocates (Intended Interested Party) (Cause 394 of 2018) [2023] KEELRC 3251 (KLR)", Case Analysis (2023). Not stated in the judgment (ELRC cause; Notice of Motion dated 3rd October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3251/eng@2023-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.