Kenya Union of Water and Sewerage Employees v Registrar of Trade Unions; Olwalo (Interested Party) (Judicial Review E008 of 2023) [2024] KEELRC 13 (KLR)
The bottom line
#A Kenyan court confirmed it can enforce its own judgment even after concluding a case, clearing the way for a water workers' union to access its bank accounts and official records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court had become functus officio having delivered its judgment on 21st December, 2023 and therefore lacked jurisdiction to entertain the application dated 11th January, 2024
- 2.Whether the applicant's General Secretary, Elijah Otieno Awach, had locus standi to institute the application having allegedly been suspended on 14th October, 2023
- 3.Whether the orders sought were administrative in nature, merely operationalising the judgment of 21st December, 2023, and could be granted without a merit hearing
Key legal issues
#Whether the Court was functus officio after delivering judgment on 21st December, 2023
The Court was not functus officio; the application merely sought to enforce and operationalise the existing judgment, not to re-engage the merits
Relying on Telkom Kenya v John Ochanda and Raila Odinga v IEBC, the Court acknowledged the finality principle embodied in the functus officio doctrine. However, it found that the applicant was only seeking an extract of the register and substitution of bank signatories to give effect to the judgment of 21st December, 2023. There was no new merit-based re-engagement of issues already determined, so the doctrine was not breached. Section 99 of the Civil Procedure Act permitting correction of errors was also noted.
Whether the General Secretary lacked locus standi due to alleged suspension on 14th October, 2023
The suspension could not stand; as at the judgment date the registered officials were those elected on 11th February, 2021/extract of 11th February, 2022, and the Registrar, having taken a neutral position in her replying affidavit, could not have validly effected changes while the matter was pending
Beatrice Mathenge's replying affidavit acknowledged wrangling in the union and stated it was not prudent to register changes while the matter was sub judice. The Court held that a purported extract dated 1st December, 2023 showing the suspension was contradictory to the Registrar's own position, made in bad faith and partisan, whereas the Registrar ought to maintain utmost neutrality. The judgment of 21st December, 2023 restored the officials as at 11th February, 2022, and no appeal was filed against it.
Whether the orders sought required a merit hearing
No; the orders were administrative in nature, merely intended to operationalise the judgment
The Court found that the orders sought (an extract of officials and substitution of bank signatories) did not reopen any decided issue but simply enabled the judgment to be given effect. In upholding ILO Convention 98 on freedom of association and collective bargaining, and noting that the union constitution allows trustees to delegate control over funds, the Court granted the orders without a full hearing, refusing to let obstructive wrangling ground the union's operations.
Legal principles established
#- The doctrine of functus officio bars a court from revisiting a decided matter on a merit-based re-engagement, but does not bar a court from enforcing or operationalising its own judgment
- A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained
- Changes to the register of union officials made while the dispute over the bona fide officials was pending in court would be null and void
Court orders
#- 1.The preliminary objection is dismissed for lack of merit
- 2.The orders sought by the applicant are administrative in nature, merely intended to operationalise the judgment of 21st December, 2023, and do not require a merit hearing
- 3.The applicant is allowed to substitute the National Chairman and the National Treasurer with any of its registered trustees
- 4.In the event that the National Chairman and Treasurer agree to cooperate, order (iii) will stand discharged
- 5.The respondent shall forthwith issue the applicant with the extract of the registered union officials as at 11th February, 2022
- 6.Each party shall bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution; Labour Relations Act; enforcement of the Court's own judgment of 21st December 2023
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered and a decree issued
The preliminary objection has no merit and is hereby dismissed
the Court hereby allows the applicant to substitute the National Chairman and the National Treasurer with any of its registered trustees
The respondent and as indicated by the State Counsel shall forthwith issue the applicant with the extract of the registered union oficials as at 11th February, 2022
Each party shall bear their own costs of the application
Issues in the judgment
#The judgment contains internal inconsistencies in dates: paragraph 3 records the Recess Duty Judge ordering the matter be placed before the trial court on '23rd January, 2023', yet hearing occurred on 23rd January, 2024; the officials' election is alternatively described as 11th February, 2021 and 11th February, 2022; and the applicant's account number is inconsistently rendered (011202xxxxxxxx vs 01120xxxxxxx)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Water and Sewerage Employees v Registrar of Trade Unions; Olwalo (Interested Party) (Judicial Review E008 of 2023) [2024] KEELRC 13 (KLR)", Case Analysis (2024). Notice of Motion dated 11th January, 2024 (in the Judicial Review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/13/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.