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ELRCDismissedNot stated in judgment

Obonyo & 50 others v Kenya Engineering Workers Union (Miscellaneous Application 132 of 2018) [2024] KEELRC 2285 (KLR)

Employment and Labour Relations Court
25 September 2024
1,780 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a review application because the applicant ignored an order to pay costs first, and waited a year to file.

What this practically means

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Executive summary

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The Applicants, former employees of Nalin Nail Works Limited, applied by notice dated 19th October 2023 for leave to file an application for review and for the court to review its ruling of 28th October 2022, together with a stay of execution of that ruling. They had been awarded a decretal sum of Kshs 18,012,032.85 plus costs, part of which remained unpaid five years later. They complained that the ruling of 28th October 2022 infringed their right to pursue justice because it ordered costs of Kshs 50,000/= against them. The Respondent opposed, contending that the deponent John Denis Obonyo had been overpaid, lacked authority to act for others, had been declared a vexatious litigant and ordered to pay Kshs 50,000/= before filing any further application, and that review lay only under Rule 33 of the ELRC (Procedure) Rules, 2016, not Rule 17, and was brought after inordinate delay. The court found that the locus question had already been determined in the ruling of 27th October 2022 by Lady Justice Mbaru, that Mr. Obonyo had neither paid the ordered costs nor appealed, and that he failed to cure the defect of authority. The court held that review is governed by Rule 33, none of whose grounds were raised, that a complaint about the merits of the ruling was a ground of appeal not review, and that the one-year unexplained delay was inordinate. The alleged assault was a matter for the criminal court. The application was dismissed with costs, Mr. Obonyo was ordered to pay all costs due to the Respondent before taking any further step, and unpaid Applicants were directed to present themselves with proper documents to be paid their final dues.

Questions the Court framed

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

  1. 1.Whether Mr. Obonyo has locus to file applications on behalf of the Applicants having been declared a vexatious litigant and ordered to pay costs before filing any further suit or application
  2. 2.Whether the application for review was brought under the correct provisions of law
  3. 3.Whether any of the grounds for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 were established
  4. 4.Whether the application was filed after inordinate delay without explanation
  5. 5.Whether the Applicants were entitled to stay of execution of the ruling of 28th October 2022

Key legal issues

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01

Compliance with conditional leave to file applications (vexatious litigant order)

Holding

Mr. Obonyo, having been declared a vexatious litigant and ordered to pay Kshs 50,000/= to the Respondent before filing any suit or application, was required to pay that amount before filing this application since no stay was obtained; his failure meant the application could not be entertained.

Reasoning

The court noted the prior ruling of 27th October 2022 by Lady Justice Mbaru declaring Mr. Obonyo a vexatious litigant with a conditional costs order. He neither paid the costs nor appealed. The court emphasized adherence to court orders and held the condition precedent had not been satisfied, depriving the application of standing.

p. 3
02

Correct procedural basis for review

Holding

The application was misconceived as it was brought under Rule 17 instead of Rule 33 of the ELRC (Procedure) Rules, 2016, and no Rule 33 ground (discovery of new evidence, error apparent, clarification, or sufficient reason) was raised.

Reasoning

Section 16 of the ELRC Act empowers the court to review its judgments, awards, orders or decrees in accordance with the Rules. Rule 33 sets out four grounds. The Applicants invoked Rule 17 and asserted only that the ruling infringed their rights to pursue justice, which is a merits-based complaint appealable but not reviewable.

p. 3
03

Inordinate delay in seeking review

Holding

The application filed in October 2023, one year after the ruling of 27th/28th October 2022, without explanation of the delay, constituted inordinate delay that could not be entertained.

Reasoning

Rule 33 requires an application for review to be made within reasonable time. The court found the one-year delay unexplained. The alleged assault of the Applicants was irrelevant to the review application and was a matter for the criminal court (Milimani Criminal Case No. 1806 of 2022) to determine.

p. 4
04

Payment of outstanding dues to former employees

Holding

The court directed that unpaid Applicants, or legal representatives of deceased Applicants, present themselves at the Respondent's premises with necessary original documents to be paid their final dues, consistent with Justice Wasilwa's directions on transparent payment.

Reasoning

The Respondent expressed willingness to pay any unpaid Applicants upon presentation of original ID cards, and for deceased grievants, original grants of Letters of Administration. The court adopted this and directed such persons to appear at the Respondent's premises for payment.

p. 4

Legal principles established

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  • A party ordered to pay costs before filing any further suit or application must comply with that order before instituting a new application, absent a stay.
  • Review of judgments, awards, orders or decrees of the ELRC is governed by Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules, 2016, not other rules.
  • A complaint that a ruling infringed on a party's rights goes to the merits of the ruling and constitutes a ground for appeal, not review.

Court orders

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  1. 1.The application dated 19th October 2023 is dismissed with costs to the Respondent
  2. 2.Mr. Obonyo is ordered to pay all the costs due to the Respondent strictly before taking any further action in this matter
  3. 3.Unpaid Applicants (or legal representatives of deceased Applicants with proper original documentation) are directed to appear at the Respondent's premises with the necessary documents in order to be paid their final dues

The bench

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

Wrote the judgment

Jurisdiction invoked
Section 16 and Section 12(1)(g)(2)(3), 4(1)(a) of the Employment and Labour Relations Court Act; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Leave to file application for review and review of the ruling dated 28th October 2022

No grounds for review under Rule 33 were raised; the application was filed one year after the ruling in inordinate, unexplained delay; and the applicant was in default of the order to pay costs before filing

p. 3

Stay of execution of the ruling issued on 28th October 2022

The applicant was not entitled to stay orders having defaulted by filing the application without paying costs as directed by the court

p. 4

Costs

Application dismissed with costs to the Respondent; Mr. Obonyo ordered to pay all the costs due to the Respondent strictly before taking any further action in this matter.

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.

This court emphasizes the need for Mr. Obonyo to adhere to court orders. He ought to have paid the said costs of the Application Kshs 50,000/= to the Respondent before filing this application since no stay orders of the same were sought before this application.
p. 3Compliance with conditional costs order before filing further applications
The Applicants have also approached this court on the wrong provisions of law since Review is provided for under Rules 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and not Rule 17.
p. 3Correct rule governing review in the ELRC
The ground of the ruling infringing on their rights goes to the merits of the Ruling and can only constitute a ground for appeal and not review.
p. 3Distinction between grounds of appeal and grounds of review
The court finds this to be inordinate delay which can not be entertained.
p. 4Inordinate delay in review applications
In the upshot the Application lacks merit and is hereby dismissed with costs to the Respondent. This court orders the Mr. Obonyo to pay all the costs due to the Respondent strictly before taking any further action in this matter.
p. 4Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the ruling sought to be reviewed, describing it both as 28th October 2022 and as delivered on 27th October 2022.

minor

The judgment header dates differ: dated at Nairobi 24th September 2024 but delivered virtually 25th September 2024.

minor

The judgment also inconsistently attributes the ruling of 28th October 2022, stating in one place it was delivered by Hon. Lady Justice Mbaru on 27th October 2022 regarding the vexatious litigant finding.

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, "Obonyo & 50 others v Kenya Engineering Workers Union (Miscellaneous Application 132 of 2018) [2024] KEELRC 2285 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2285/eng@2024-09-25

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