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ELRCDismissedNot stated in the judgment extract

Kinyeki & 88 others v Kenya Ports Authority & another (Cause 40 of 2015) [2023] KEELRC 2038 (KLR)

Employment and Labour Relations Court
27 July 2023
2,631 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 respondents, Kenya Ports Authority and its Managing Director, filed an application dated 3 March 2022 in a claim arising from the March 2011 industrial action at the Port, seeking a stay of proceedings pending their appeal to the Supreme Court (Petition No. E008 of 2023) from the Court of Appeal decision in Civil Appeal No. 134 of 2018, and a review of the court's directions of 24 July 2019 which had directed the parties to consider that decision and either settle the claim or craft issues outside its scope. The respondents argued the directions were issued without their having had an opportunity to consider the Court of Appeal judgment, and that proceeding would cause a clash with the pending appeal. The claimants opposed, noting the appeal concerned different claimants, the hearing was advanced with only two witnesses remaining, no consolidation had ever been sought, and the application was a ploy to delay. The court framed twin issues: whether to stay proceedings and whether to review the orders of 24 July 2019. It held that stay of proceedings is a grave judicial action impinging on access to justice, that the test is high and stringent, and that any Supreme Court pronouncement would foster rather than impede access to justice. It further held that no sufficient cause, error, mistake or new matter justified review, and that written submissions could not introduce the Supreme Court petition as new facts. The application was dismissed with costs to the claimants, with hearing directions to issue.

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 should stay proceedings herein to allow the hearing of Civil Appeal No. 134 of 2018
  2. 2.Whether the court should review the orders issued on 24 July 2019

Key legal issues

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01

Whether proceedings should be stayed pending the Supreme Court petition

Holding

Stay refused; the Supreme Court petition is unrelated to these claimants, the claim is at an advanced stage of hearing, and staying it would delay access to justice

Reasoning

The court held that the pending appeal concerns different claimants even though the respondents are the same. The respondents never sought consolidation and continued participating in the hearing. Any Supreme Court pronouncement would foster rather than impede access to justice, so there is no possibility of conflict between the two matters.

p. 4
02

Whether the orders of 24 July 2019 should be reviewed

Holding

Review refused; no sufficient cause, error, mistake or new matter was established, and the respondents' inaction since 2019 defeated the application

Reasoning

The court found the directions of 24 July 2019 were issued with full awareness of the Court of Appeal decision and merely guided parties to settle or frame issues. No settlement or issues followed. The respondents filed the application only on 3 March 2022 without diligence, and the matters they wanted corrected did not amount to sufficient cause for review.

p. 5
03

Whether written submissions could introduce the Supreme Court petition as a new fact

Holding

The Supreme Court petition was filed after the application and could only be introduced by affidavit or evidence, not by written submissions

Reasoning

The court noted the petition arose post-application and was only addressed in submissions. It held that submissions cannot introduce new facts, which must go into affidavits, evidence or as directed by the court, and that the orders sought had not been amended since the motion commenced.

p. 3

Legal principles established

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  • Stay of proceedings is a grave judicial action that seriously interferes with a litigant's right to conduct litigation and access justice; the test for granting it is high and stringent
  • A court order may only be reviewed upon discovery of new matter, error, mistake, need for clarification or other sufficient cause

Court orders

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  1. 1.Application dated 3 March 2022 found without merit and dismissed with costs to the claimants
  2. 2.Hearing directions to issue, the claim to be heard on the merits

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, including Section 3 on the duty to administer justice expeditiously

Relief refused

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Stay of proceedings pending hearing and determination of the appeal/petition before the Supreme Court (Petition No. E008 of 2023)

Stay of proceedings is a grave judicial action that interferes with the right to conduct litigation on the merits; the cited appeal involves different claimants and proceeding with the claim fosters access to justice

p. 4

Review of the orders issued on 24 July 2019

No discovery of new matter, error, mistake, need for clarification or sufficient cause was demonstrated; respondents were indolent since 24 July 2019

p. 5

Costs

Dismissed with costs to the claimants

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.

Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent
p. 4Test for stay of proceedings
An order of the court can only be subjected to review where there is a discovery of new matter that was not within the knowledge of the parties at the time the orders issued, there is error, mistake, need for clarification or for other good cause
p. 5Grounds for review
Written submissions in their nature cannot introduce new facts. Such are matters that go into afidavits, evidence or as directed by the court
p. 3Submissions cannot introduce new facts
Accordingly, application dated 3 March 2022 is hereby found without merit and is hereby dismissed with costs to the claimants.
p. 5Final orders - dismissal
This being a 2015 matter and the claimants have given most of their evidence, hearing directions shall issue.
p. 5Final orders - hearing directions

Issues in the judgment

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minor

The judgment gives inconsistent dates for the directions complained of, referring at times to orders issued on 24 July 2019 and at other times to orders of 29 July 2019

minor

The case name 'Kenya Wildlife Service v Geoffrey Mokaya Aboki & Karen Chepkurui' appears implausible on its facts and is repeated as 'Watu Credit v Geoffrey Mokaya Aboki & Karen Chepkurui', suggesting an error in the party names of the cited authority

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, "Kinyeki & 88 others v Kenya Ports Authority & another (Cause 40 of 2015) [2023] KEELRC 2038 (KLR)", Case Analysis (2023). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2038/eng@2023-07-27

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