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Supreme CourtDismissedPetition 4 of 2018

Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU); Represented by its Promoters)

Supreme Court of Kenya
8 May 2019
3,326 words in judgment
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AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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You cannot skip lower courts to ask the Supreme Court for a stay.

What this practically means

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The Supreme Court dismissed an application from workers who wanted to stop cases in the Employment and Labour Relations Court. The Court said those workers should first ask the lower court for a stay, not come directly to the Supreme Court. The Court also refused to hear new issues about collective bargaining and union dues because those were never raised in the lower courts. The workers must pay the union's legal costs.

Executive summary

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This ruling arises from a Notice of Motion filed by the applicants (David Benedict Omulama and others, representing KEFHAU) seeking several interim orders pending the hearing of a substantive appeal (Petition No. 4 of 2018) before the Supreme Court. The background involves a long-standing dispute over the registration of KEFHAU as a trade union, which was initially refused by the Registrar of Trade Unions. The Employment and Labour Relations Court reversed that decision, and the Court of Appeal dismissed the respondent's appeal. The respondent then appealed to the Supreme Court. Before that appeal could be heard, the applicants filed the present application, seeking orders to: (1) prohibit the respondent from filing suits in lower courts on matters arising from the Court of Appeal judgment; (2) stay proceedings in two cases (Cause No. 13 of 2018 and Cause No. 222 of 2018) before the Employment and Labour Relations Court; (3) allow the applicants to engage in Collective Bargaining Agreement negotiations; and (4) direct employers to deduct and remit union dues. The Supreme Court dismissed the entire application. On the first two prayers, the Court held that the Employment and Labour Relations Court should first be given the opportunity to determine whether the matters before it raise similar questions as those before the Supreme Court, and that to bypass the lower courts would be an abuse of process. On the last two prayers, the Court found that the issues of collective bargaining and remittance of union dues were neither raised nor determined in the courts below, and therefore the Supreme Court lacked jurisdiction to entertain them. The Court ordered the applicants to bear the costs of the respondent.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to determine this application? If the answer is in the affirmative, what remedy is available to the Applicants?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to stay proceedings before a lower court (the Employment and Labour Relations Court) pending the hearing of an appeal before it.

Holding

The Supreme Court declined to exercise such jurisdiction, holding that the lower court should first be given the opportunity to determine whether the matters before it raise similar questions as those before the Supreme Court.

Reasoning

The Court reasoned that the Employment and Labour Relations Court had the advantage of assessing the facts and legal arguments placed before it. To allow the applicants to disregard the courts below and come directly to the Supreme Court for stay orders would amount to an abuse of the court process. The proper course is for the applicants to first seek relief from the lower court, and if dissatisfied, to appeal through the normal appellate mechanism.

02

Whether the Supreme Court has jurisdiction to issue orders on matters (collective bargaining agreement and remittance of union dues) that were not raised or determined in the courts below.

Holding

The Supreme Court lacks jurisdiction to entertain such matters as they have not arisen through the normal appellate mechanism.

Reasoning

The Court examined the record and found that the issues of collective bargaining agreement and remittance of union dues were neither raised nor determined at the Employment and Labour Relations Court or the Court of Appeal. Therefore, they were being raised for the first time before the Supreme Court, which is impermissible. The Court emphasized that a litigant's cause must have a definite thread that can be traced within the judicial hierarchy.

Legal principles established

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  • A party must first seek a stay from the lower court before coming to the Supreme Court.
  • The Supreme Court will not hear issues that were not raised and decided in the courts below.
  • Bypassing lower courts to seek orders from the Supreme Court is an abuse of court process.
  • A litigant's case must follow a clear path through the judicial hierarchy from start to finish.
  • The lower court is best placed to decide if its cases raise the same questions as a Supreme Court appeal.

Court orders

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  1. 1.The Notice of Motion dated 9th August, 2018 be and is hereby dismissed.
  2. 2.The Applicants shall bear the costs of the Respondent.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 141 of 2014
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya

Relief refused

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Orders prohibiting the Respondent from instituting legal proceedings in lower courts on matters arising from the impugned Court of Appeal judgment

The Court held that the Employment and Labour Relations Court should be afforded the first opportunity to express an opinion on whether the causes before it raise similar questions as those before the Supreme Court, and that to allow the applicant to disregard the Courts below would amount to an abuse of the process of Court.

Orders staying proceedings in Cause No. 13 of 2018 and Cause No. 222 of 2018 in the Employment and Labour Relations Court

Same reasoning as above; the Court was reluctant to grant the stay orders.

Orders allowing the Applicants to engage in Collective Bargaining Agreement negotiations and directing employers to deduct and remit union dues

The Court found that these issues were neither raised nor determined at the Courts below, and therefore it lacked jurisdiction to entertain them having been raised for the first time before the Supreme Court.

Costs

The Applicants shall bear the costs of 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.

To allow the applicant disregard the Courts below and come directly to this Court in search of stay orders, would amount to an abuse of the process of Court.
p. 8 Abuse of process; Hierarchy of courts
We have perused the record and noted that the issues on collective bargaining agreement and remittance of union dues were neither raised nor determined at the Courts below. Consequently, this Court lacks jurisdiction to entertaine the same having been raised here for the first time.
p. 9 Jurisdiction of the Supreme Court; Appellate mechanism
The Notice of Motion dated 9th August, 2018 be and is hereby dismissed.
p. 9 Final orders
The Applicants shall bear the costs of the Respondent.
p. 9 Costs order

Key timeline

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2018-08-09
Workers filed an application in the Supreme Court seeking to stop cases in the Employment and Labour Relations Court.
2018-08-09
Supreme Court dismissed the application, ruling workers must first go to the lower court.
2018-08-09
Supreme Court also refused to hear new issues on collective bargaining and union dues.

Practical implications

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For lawyers

File stay applications in lower courts first

When your client needs a stay of proceedings pending a Supreme Court appeal, always file the application in the lower court first. The Supreme Court will reject any direct application as an abuse of process. If the lower court refuses, then you can appeal that refusal through the normal channels.

For businesses

Union disputes must follow court hierarchy

If you are involved in a labour dispute with a union, ensure all issues are raised at the Employment and Labour Relations Court and the Court of Appeal. Any new arguments about collective bargaining or union dues cannot be introduced for the first time at the Supreme Court. Plan your legal strategy to cover all issues early.

For individuals

Raise all issues in lower courts

If you are a worker or union member in a legal dispute, make sure you raise every concern—like collective bargaining or union dues—at the Employment and Labour Relations Court. You cannot save new issues for the Supreme Court. The Supreme Court will only hear matters that were already argued and decided in the lower courts.

Frequently asked questions

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Can I go directly to the Supreme Court in Kenya to stop a lower court case?+

No. The Supreme Court in Kenya requires you to first ask the lower court for a stay. If you go directly to the Supreme Court, it will dismiss your application as an abuse of process.

What happens if I raise a new issue for the first time at the Supreme Court in Kenya?+

The Supreme Court will refuse to hear it. The Court only has jurisdiction over issues that were raised and decided in the lower courts. New issues must be raised at the Employment and Labour Relations Court or Court of Appeal first.

What is the proper procedure to get a stay of proceedings in Kenya?+

You must file your application for a stay in the court where the case is pending. If that court refuses, you can appeal the refusal to a higher court. You cannot skip this step and go straight to the Supreme Court.

Does the Supreme Court in Kenya have jurisdiction over collective bargaining disputes?+

Only if the collective bargaining issue was raised and decided in the lower courts. If it was not, the Supreme Court lacks jurisdiction to hear it for the first time.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU); Represented by its Promoters)", Case Analysis (2019). Petition 4 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/37/eng@2019-05-08

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