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ELRCDismissedPetition (application dated 20th March 2024)

Were v Board of Directors National Transport Safety Authority & another; Njao (Interested Party) (Petition E002 of 2023) [2024] KEELRC 2057 (KLR)

Employment and Labour Relations Court
26 July 2024
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a man's attempt to undo a settlement his lawyer signed, ruling he must complain to the advocates' regulator or appeal—not re-litigate.

What this practically means

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Executive summary

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The petitioner, Edwin Owuor Were, filed a notice of motion dated 20 March 2024 seeking to quash a consent dated 16 January 2023 adopted by the court, to rescind or set aside the judgment emanating from its adoption, and to reinstate the interim orders issued on 5 January 2023 discharging the Director General of the National Transport and Safety Authority. He alleged the consent was filed by his then advocates without his knowledge or authority. The 1st respondent and the interested party filed a preliminary objection contending the court lacked jurisdiction, that the application was res judicata, having been dealt with in the ruling of 10 February 2023, and that it invited the court to sit on appeal on its own decision. They also cited a Kiambu High Court petition and pending proceedings on similar issues. In a ruling delivered on 26 July 2024, Byram Ongaya, Principal Judge, upheld the preliminary objection. The court found the consent and its adoption had already been the subject of a previous ruling, that the applicant ought to have appealed if dissatisfied, and that any want of instructions on the part of counsel was a matter for professional disciplinary processes. The application was dismissed with costs, costs being awarded to the respondent as the applicant was found to have abused court process.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court lacks jurisdiction to entertain the application, the issues having been determined in the ruling of 10th February 2023 (res judicata)
  2. 2.Whether the application irregularly invites the court to sit on appeal on its own decision
  3. 3.Whether the application is frivolous, vexatious and an abuse of court process

Key legal issues

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01

Res judicata and abuse of court process

Holding

The application was res judicata as the consent and its adoption had been the subject of a previous application and ruling, and a previously decided suit on similar matters exists.

Reasoning

The court found that the consent dated 16.01.2023 and its adoption had already been litigated and determined in the ruling of 10.02.2023, which was neither appealed nor reviewed. The applicant also did not deny the existence of a previously decided suit and pending suits on similar matters. Bringing the same issues afresh constituted an abuse of process.

p. 3
02

Alleged want of authority of advocate to file the consent

Holding

Having instructed counsel who signed and filed the consent, any want of instructions is a matter for professional disciplinary processes against the advocate.

Reasoning

The record showed the applicant had instructed counsel who signed and filed the consent adopted as a court order. The court held that any grievance about lack of instructions does not lie in a review application but falls within professional disciplinary processes, and repeated its earlier finding to that effect in the 10.02.2023 ruling.

p. 3

Legal principles established

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  • Where a consent was signed and filed by counsel instructed by the applicant and adopted by the court, any complaint of want of instructions lies in professional disciplinary processes, not in a review application.
  • A party dissatisfied with a ruling ought to appeal rather than file a fresh application raising the same issues.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The application dated 20.03.2024 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

Relief refused

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Quashing of the consent adopted on 16 January 2023

The issues were already determined in the ruling of 10 February 2023; the application is res judicata and an abuse of court process

p. 3

Rescission/setting aside of the judgment emanating from adoption of the consent and reinstatement of the orders of 05.01.2023

The court cannot sit on appeal on its own decision; any want of instructions is a matter for professional disciplinary processes

p. 3

Costs

Application dismissed with costs; the applicant to pay costs of the application to the respondent

Quotable passages

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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 instant application is an abuse of Court process as is res judicata.
p. 3res judicata and abuse of process
The applicant ought to have appealed if he was dissatisfied.
p. 3proper avenue of redress
Any want of instructions on the part of the client, the applicant, falls for professional disciplinary processes.
p. 3advocate-client authority
In conclusion, the application dated 20.03.2024 filed for the petitioner here in is hereby dismissed with costs as the preliminary objection is upheld as found by the Court.
p. 4final orders

Issues in the judgment

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minor

The judgment internally refers inconsistently to the date the interim orders were discharged ('01.05.2023') versus the consent adopted on 16 January 2023

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, "Were v Board of Directors National Transport Safety Authority & another; Njao (Interested Party) (Petition E002 of 2023) [2024] KEELRC 2057 (KLR)", Case Analysis (2024). Petition (application dated 20th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2057/eng@2024-07-26

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