Obonyo & 50 others v Kenya Engineering Workers Union (Miscellaneous Application 132 of 2018) [2024] KEELRC 2285 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the application for review was brought under the correct provisions of law
- 3.Whether any of the grounds for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 were established
- 4.Whether the application was filed after inordinate delay without explanation
- 5.Whether the Applicants were entitled to stay of execution of the ruling of 28th October 2022
Key legal issues
#Compliance with conditional leave to file applications (vexatious litigant order)
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.
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.
Correct procedural basis for review
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.
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.
Inordinate delay in seeking review
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.
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.
Payment of outstanding dues to former employees
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.
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.
Legal principles established
#- 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
#- 1.The application dated 19th October 2023 is dismissed with costs to the Respondent
- 2.Mr. Obonyo is ordered to pay all the costs due to the Respondent strictly before taking any further action in this matter
- 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
#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
#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
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
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
#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.
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.
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.
The court finds this to be inordinate delay which can not be entertained.
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.
Issues in the judgment
#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.
The judgment header dates differ: dated at Nairobi 24th September 2024 but delivered virtually 25th September 2024.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.