[2018] KEELRC 2424 (KLR)
The Court found that the Claimants' Application was frivolous and without merit because the Respondents had already invited the 1st Claimant to inspect the documents, but he failed to do so and instead filed the Application. The Court further held that the Application was technically flawed, as it was presented as a...
Source-derived case information.
- Citation
- [2018] KEELRC 2424 (KLR)
- Parties
- Applicant: Anthony Omondi; Applicant: George Kioko Mativo; Applicant: Festo Gogo; Applicant: Masumbuko Kitsao; Applicant: Jared Mwambeo; Applicant: Misheck Maingi; Respondent: Kenya Chemical and Allied Workers Union; Respondent: W.D. Ogutu; Respondent: H. Ochuodho
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 573 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Production and Inspection of Documents
- Outcome
- application dismissed with costs
- Judges
- J Rika
- Legal Topics
- Discovery of Documents, Inspection of Records, Labour Relations Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Omondi
Applicant
George Kioko Mativo
Applicant
Festo Gogo
Applicant
Masumbuko Kitsao
Applicant
Jared Mwambeo
Applicant
Misheck Maingi
Applicant
Kenya Chemical and Allied Workers Union
Respondent
W.D. Ogutu
Respondent
H. Ochuodho
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Production and Inspection of Documents
Legal Issues
- 1 Whether the Claimants are entitled to an order compelling the Respondents to produce and allow inspection of specified records pending hearing and determination of the main claim.
- 2 Whether the Application was properly brought as a Miscellaneous Application within an existing Cause.
- 3 Whether the Claimants followed the prescribed procedure for inspection of union records under the Labour Relations Act.
Ratio Decidendi
The Court found that the Claimants' Application was frivolous and without merit because the Respondents had already invited the 1st Claimant to inspect the documents, but he failed to do so and instead filed the Application. The Court further held that the Application was technically flawed, as it was presented as a Miscellaneous Application within an existing Cause, which is procedurally improper. The Claimants also failed to attend the hearing to explain their position, despite the hearing date being taken by consent. The Court concluded that there was no justification to compel the Respondents to do what they had not refused to do, and that the Claimants had not followed the prescribed...
Court Disposition
application dismissed with costs
Orders
- The Application dated 14th July 2017 is rejected with costs to the Respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 573 OF 2017
BETWEEN
1. ANTHONY OMONDI
2. GEORGE KIOKO MATIVO
3. FESTO GOGO
4. MASUMBUKO KITSAO
5. JARED MWAMBEO
6. MISHECK MAINGI ……………………………………CLAIMANTS
VERSUS
1. KENYA CHEMICAL AND ALLIED WORKERS UNION
2. W.D. OGUTU
3. H.OCHUODHO …………………....……………….RESPONDENTS
RULING
1. The Claimants filed an Application dated 14th July 2017, asking the Court to order the 3rd Respondent to avail an array of 1st Respondent’s records to the Claimants. The records include: wage book; payrolls; membership list; receipts; expenditure reports; approvals; bank statements; bank withdrawals; salary arrears; and pay returns. The Claimants wish to inspect these records, pending hearing and determination of the Claim.
2. The Application is supported by the Affidavit of the 1st Claimant, Anthony Omondi, sworn on 14th July 2017.
3. The Application is opposed through a lengthy Replying Affidavit, sworn by the 2nd Respondent, on 24th July 2017.
4. On 30th October 2017, Parties’ Advocates scheduled the Application for hearing on 29th November 2017.
5. The Claimants and their Advocates did not attend Court on 29th November 2017.
6. Ms. Oluoch Wambi for the Respondents attended Court and submitted why, the Application should be rejected. She did not confine her reasons to the Claimants’ non-attendance.
7. In brief, the Respondents state that the Claimants did not indicate if they wished to inspect books of account at the Head Office in Nairobi, or Branch Office at Bamburi in Mombasa; the Claimants did not follow the prescribed inspection procedure under Section 44 of the Labour Relations Act 2007; the 1st Claimant was nonetheless invited by the Respondents to inspect documents, but instead of inspecting documents, wrote demand letter to the Respondents through Claimants’ Advocates; and lastly, the Respondents submit that the Claimants kept important letters from the Court, which were exchanged between the Parties on the dispute, prior to commencement of proceedings.
The Court Finds:-
8. The Respondents have shown sufficient reasons to enable the Court conclude, that the Application filed by the Claimants is frivolous and without merit. The 1st Claimant was invited by the Respondents to inspect documents. He failed to do so, and filed this unnecessary Application. Why should the Respondents be compelled to do that which they have not declined to do?
9. The Claimants did not attend Court to explain their position. The hearing date was taken with the consent of Parties’ Advocates.
10. The Application is technically flawed. It is presented as a Miscellaneous Application. There is a Claim registered as Cause Number 573 of 2017. Why should the Claimants file a Miscellaneous Application within a specific Claim?
11. For these reasons, the Application dated 14th July 2017 is rejected with costs to the Respondents.
Dated and delivered at Mombasa this 23rd day of February 2018.
James Rika
Judge