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IndustrialDismissedCause No. 377 of 2014

Kenya Plantation and Agricultural Workers Union v Karuturi Limited& another (Cause 377 of 2014) (Employment and Labour) [2014] KEIC 11 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 December 2014
MNMathews Nderi NdumaNMNzioki wa Makau
455 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a union's duplicate lawsuit, ruling that where a court order already exists, the remedy is contempt proceedings—not filing another case.

What this practically means

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Executive summary

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This first-instance ruling of the Industrial Court at Nairobi, delivered on 17th December 2014 by Mathews Nderi Nduma, Principal Judge, and Nzioki wa Makau, Judge, dealt with an application dated 3rd October 2014 seeking the striking out of Nakuru Cause No. 377 of 2014 on the ground that its issues were similar to those in Nakuru Petition No. 12 of 2014, which was still pending before the Nakuru Industrial Court. The respondents, Karuturi Limited (in receivership) and its joint receiver and managers Kieran Day and Ian Small, argued that the orders restraining the locking out, termination, dismissal or suspension of named shopstewards, sought in the application dated 18th August 2014, had already been granted in Petition No. 12 of 2014, and that there had been material non-disclosure of that petition. The Claimant Union, through a replying affidavit of its Deputy General Secretary Thomas Kipkemboi, merely asserted that the two causes were distinct without elaborating the difference. The Court noted that grounds 6 to 12 of the Claimant's own application admitted that Hon. Ongaya J. had issued an interim order on 30th July 2014 in Petition No. 12 of 2014 concerning the same subject matter and the same respondents. The Court held that instead of seeking leave to commence contempt proceedings for the alleged breach of that order, the Claimant filed another suit seeking the same orders, which constituted an abuse of the process of the Court that would clog the court's diary. The cause was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether Cause No. 377 of 2014 raises issues similar to those in Nakuru Petition No. 12 of 2014
  2. 2.Whether the suit is an abuse of the process of the Court given the pending Petition No. 12 of 2014
  3. 3.Whether there was material non-disclosure of Petition No. 12 of 2014 and the injunction order obtained therein

Key legal issues

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01

Abuse of process - multiplicity of suits over the same subject matter

Holding

The suit was an abuse of the process of the Court because it sought the same orders against the same respondents as the pending Nakuru Petition No. 12 of 2014, in which interim orders had already been issued by Ongaya J.

Reasoning

The Court found that grounds 6-12 of the application dated 18th August 2014 admitted that an interim order had been issued on 30th July 2014 in Petition No. 12 of 2014 dealing with the same subject matter and against the same respondents. The proper remedy for an alleged breach of that order was to seek leave to commence contempt proceedings, not to file a fresh suit. Condoning the practice would clog the court's diary.

p. 2
02

Material non-disclosure

Holding

The Claimant was taken to have made material non-disclosure of the existence of Petition No. 12 of 2014 and the injunction order obtained therein when instituting the present cause.

Reasoning

The respondents contended, and the Court accepted in substance, that the Claimant had not disclosed the pending petition and its interim orders. The Court treated this, together with the duplication of subject matter, as rendering the present suit an abuse of process warranting dismissal.

p. 2

Legal principles established

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  • Filing a fresh suit to obtain orders already granted in a pending suit, instead of enforcing the existing order (including through contempt proceedings), is an abuse of the process of the Court.

Court orders

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  1. 1.Cause No. 377 of 2014 (Nakuru) dismissed
  2. 2.Costs awarded to the respondents

The bench

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

MN
majority

Wrote the judgment

NM
majority
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment causes (Industrial Court Act / Article 162(2))

Relief refused

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Claimant's suit (Cause No. 377 of 2014) allowed to proceed / interim orders sought therein

The suit duplicated relief already granted in Nakuru Petition No. 12 of 2014 and constituted an abuse of court process

p. 2

Costs

Cause No. 377 of 2014 dismissed with costs to the respondents

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.

Clearly, this suit constitutes an abuse of the process of the Court. If this practice is condoned by the Court it would unnecessarily clog the Court's diary hence denying worthy causes expeditious hearing and determination.
p. 2Abuse of court process - multiplicity of suits
In view of the foregoing, Nakuru Cause No. 377 of 2014 is dismissed with costs.
p. 2Final orders - dismissal with costs
Instead of moving an application seeking leave to commence contempt proceedings against the 1st and 2nd Respondents, the Claimant has filed another suit seeking the same orders granted in Petition No. 12 of 2014.
p. 2Correct remedy for breach of subsisting orders is contempt proceedings, not a fresh suit

Issues in the judgment

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minor

The judgment frames the notice as an application to strike out Cause No. 377 of 2014, but the final order dismisses the cause rather than striking it out; the exact disposal mechanism (strike-out versus dismissal) is not explained in the judgment as reproduced.

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 Plantation and Agricultural Workers Union v Karuturi Limited& another (Cause 377 of 2014)  (Employment and Labour) [2014] KEIC 11 (KLR)", Case Analysis (2014). Cause No. 377 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/11/eng@2014-12-17

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