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ELRCDismissedNot stated in the judgment (Notice of Motion dated 3rd April 2024)· [2024] KEELRC 1859 (KLR)

Kenya Chemical & Allied Workers Union & 3 others v East African Portland Cement PLC (Employment and Labour Relations Cause 2119 of 2014) [2024] KEELRC 1859 (KLR)

Employment and Labour Relations Court
12 July 2024
AMAnna Ngibuini Mwaure
1,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, East African Portland Cement Company Limited, filed a Notice of Motion dated 3rd April 2024 seeking a temporary stay of execution or injunction restraining the respondents, in particular the grievants' union and Mbusera Auctioneers, from executing the decree issued on 06/07/2015 as read with the consent order of 13/01/2020. The applicant argued that attached parcels of land at Athi River, valued at over Kshs 30 billion, exceeded the balance of the decretal sum, and that fresh warrants of attachment dated 15/03/2024 amounted to double execution and unjust enrichment. The respondents filed preliminary objections asserting that the court was functus officio, that the application was res judicata given prior dismissals by this court and the Court of Appeal (including Civil Appeal No. 14 of 2016 and Civil Application No. 236 of 2018), that it offended clause 8 of the 13/01/2020 consent, and that it was an abuse of process. Delivering its ruling on 12th July 2024, Mwaure J framed the sole issue as whether the court was functus officio. Relying on the Supreme Court's exposition in Raila Odinga vs IEBC and Jersey Evening Post Limited v Al Thani, the court held that having finalised proceedings and delivered judgment and several rulings, including the 07/07/2023 ruling substantially determining execution through attachment of the applicant's assets, it lacked jurisdiction to entertain the application. The file was declared conclusively closed, the application was dismissed, and costs were awarded against the applicant.

Key legal issues

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01

Whether the court is functus officio

Holding

Yes. The execution issue was substantially determined in the ruling of 07/07/2023 ordering attachment of the Applicant's assets, and the file is conclusively closed

Reasoning

The court adopted the Supreme Court's exposition of functus officio in Raila Odinga vs IEBC and Jersey Evening Post Limited v Al Thani: once a decision is given it is final and conclusive and cannot be revoked or varied by the decision-maker. All parties agreed the court was functus officio. The 07/07/2023 ruling substantially determined execution by directing attachment of assets to satisfy the decree, from whichever source. Only settlement of the judgment debt remains.

p. 4

Legal principles established

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  • Once a court has finalised proceedings, delivered judgment and issued subsequent rulings on the same matter, it becomes functus officio and lacks jurisdiction to entertain further applications on issues already determined

Court orders

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  1. 1.Application dismissed as the court is functus officio
  2. 2.Costs to be paid by the applicant
  3. 3.File declared conclusively closed; only remaining task is settlement of the judgment debt

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Raila Odinga vs IEBC & 3 others
    [2013] eKLR
  • Jersey Evening Post Limited v A1 Thani
    [2002] JLR 542
  • East Africa Portland Cement Ltd vs KCAWU
    Civil Appeal No. 14 of 2016
  • East African Portland Cement Company Limited vs Kenya Chemical and Allied Workers Union
    Civil Application No. 236 of 2018
  • East African Portland Cement Company Limited vs Kenya Chemical and Allied Workers Union (Civil Application No. 233 of 2023)
Jurisdiction invoked
Original/execution jurisdiction of the ELRC over its own decree (no specific provision invoked)

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, "Kenya Chemical & Allied Workers Union & 3 others v East African Portland Cement PLC (Employment and Labour Relations Cause 2119 of 2014) [2024] KEELRC 1859 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 3rd April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1859/eng@2024-07-12

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