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ELRCStruck OutPetition No. E007 of 2023· [2024] KEELRC 532 (KLR)

Kemboi v Mutai & 3 others; Bor & 5 others (Interested Parties) (Employment and Labour Relations Petition E007 of 2023) [2024] KEELRC 532 (KLR)

Employment and Labour Relations Court
7 March 2024
HWHellen Wasilwa
5,006 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a second petition over the same Kericho County officials dispute, ruling duplicate lawsuits waste court time and attract costs.

What this practically means

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Executive summary

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The petitioner filed a petition dated 22nd August 2023, together with a Notice of Motion, under Articles 3, 22(1), 23(1), 159 and 258 of the Constitution seeking temporary orders compelling officials of the County Government of Kericho (joined as interested parties) to step aside from office, and a mandatory order requiring H.E the Governor of Kericho County to implement the recommendations of the County Assembly's Select Ad Hoc Committee investigating the mismanagement of the Londiani Victims Fundraising of July 2023, including initiating the removal of the interested parties within 14 days. The petitioner argued the interested parties had violated Chapter Six of the Constitution and that the Governor was protecting his appointees. The 1st and 2nd Respondents raised a preliminary objection contending the petition offended the sub judice rule under Section 6 of the Civil Procedure Act, citing the pending Kericho ELRC Petition No. E006 of 2023 (Wesley Bor & 5 Others v The Kericho County Assembly & 4 Others), that it disclosed no constitutional questions per Anarita Karimi Njeru, and that it was frivolous and an abuse of process. The petitioner and the 3rd and 4th Respondents opposed, arguing the objection was not a pure point of law. The court held that it was already seized of Petition 6 of 2023 concerning the removal from office of the same interested parties and that the issues were similar or substantially similar, rendering the present petition sub judice. The court struck out the petition with costs as an abuse of the court process.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

The petition is sub judice to Kericho ELRC Petition No. E006 of 2023 (Wesley Bor & 5 Others v The Kericho County Assembly & 4 Others), which concerns the same interested parties and their removal from office and is still pending

Reasoning

The court noted it was already seized of Petition 6 of 2023 concerning removal from office of the same interested parties, and that the main petition was unresolved. The issues in both petitions were found to be similar or substantially similar, engaging Section 6 of the Civil Procedure Act, so the later petition could not proceed.

p. 10
02

Abuse of court process and striking out

Holding

Continuing with a sub judice petition constitutes an abuse of the court process justifying striking out

Reasoning

Having found the petition substantially similar to the earlier pending petition, the court held it should not be allowed to proceed and characterised it as an abuse of the court process, warranting striking out with costs.

p. 10

Legal principles established

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  • Where a petition raises issues which are similar or substantially similar to those in a previously instituted petition between overlapping parties, the later petition is sub judice and should not be allowed to proceed

Court orders

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  1. 1.The petition is struck out with costs for being an abuse of the court process
Jurisdiction invoked
Articles 3, 22(1), 23(1), 159 and 258 of the Constitution of Kenya, 2010 and Rules 3 and 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kemboi v Mutai & 3 others; Bor & 5 others (Interested Parties) (Employment and Labour Relations Petition E007 of 2023) [2024] KEELRC 532 (KLR)", Case Analysis (2024). Petition No. E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/532/eng@2024-03-07

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