Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2024] KEELRC 966 (KLR)
The bottom line
#Nyanza Club's attempt to delay paying a KShs 5.2 million judgment failed, with the court saying the employer had exhausted its chances.
What this practically means
#Executive summary
#Key legal issues
#Review of dismissal for non-attendance
Review was refused; the alleged mistake of counsel did not meet the Rule 33 threshold and the Applicant's repeated non-attendance showed disinterest.
Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016 empower review on discovery of new matter, error apparent on the face of the record, need for clarification or other sufficient reason. The Applicant attributed non-attendance to counsel's mistake but alleged no new evidence or error. Relying on Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, review requires very strong grounds. A prior application had also been dismissed for non-attendance, showing disinterest and a desire to delay execution.
Joinder of the Applicant's employees as Interested Parties
Joinder declined; the requirements for joinder were not met.
Applying the definition of an interested party in the Mutunga Rules as cited in Judicial Service Commission v Speaker of the National Assembly, and Trusted Society of Human Rights Alliance v Mumo Matemu, joinder is discretionary and requires demonstrated prejudice from non-joinder. The suit had been heard and determined with final orders in the employees' favour through their union, so no prejudice would arise. It was suspect that the employer, not the employees, sought the joinder, and the employees filed no evidence of their own wish to join.
Stay of execution and instalment payments
Stay refused; the court was functus officio on instalments and no compliance with earlier orders was shown.
A similar instalment application had been determined by a ruling dated 27th April 2023, and the Applicant led no evidence of compliance, rendering the court functus officio on that issue. On the alleged illegality of execution more than one year after decree, Order 22 Rule 18(1) requires notice, but the proviso applied because the last order in execution proceedings was made on 26th July 2023, within one year of the execution application. The Applicant had also not paid a single instalment.
Legal principles established
#- Review under Rule 33 is only granted on the enumerated grounds of new and important matter, mistake or error apparent on the face of the record, need for clarification, or other sufficient reason.
- Joinder of an interested party does not issue as of right but at the discretion of the court, requiring demonstration of an identifiable stake and prejudice from non-joinder.
- Notice to show cause is required under Order 22 Rule 18 where execution is applied for more than one year after the decree, unless the proviso applies because the application is made within one year of the last order on a previous application for execution.
Court orders
#- 1.The motion dated 29th September 2023 is dismissed
- 2.Costs of the application to the Claimant/Respondent
- Jurisdiction invoked
- Sections 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 1 Rule 10(2), Order 22 Rule 22 and Order 51 of the Civil Procedure Rules; Sections 1A, 1B, 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2024] KEELRC 966 (KLR)", Case Analysis (2024). Application dated 29th September, 2023 (in ELRC cause, judgment delivered 10th February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/966/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.