[2013] KEELRC 9 (KLR)
The Court held that the application to substitute the Claimants and to act in person was untenable because the matter had already been settled by a consent judgment, the file closed, and the decretal sum paid out. There was no pending suit before the Court, and the applicants were part of the original group that...
Source-derived case information.
- Citation
- [2013] KEELRC 9 (KLR)
- Parties
- Applicant: Francis Ndichu Kahiga; Applicant: Samuel Maina Mwaniki; Applicant: Isaiah Njoroge Mugo; Respondent: Mbo-I-Kamiti Farmers Co. Ltd; Applicant: Josphat Mugo Kamau; Applicant: Muriithi Kamau Muini; Applicant: Charles Mwangi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 732 (N) of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Substitute Claimants and Act in Person After Consent Judgment
- Outcome
- application dismissed
- Legal Topics
- Substitution of Parties, Consent Judgment, Advocate Withdrawal, Settlement Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ndichu Kahiga
Applicant
Samuel Maina Mwaniki
Applicant
Isaiah Njoroge Mugo
Applicant
Mbo-I-Kamiti Farmers Co. Ltd
Respondent
Josphat Mugo Kamau
Applicant
Muriithi Kamau Muini
Applicant
Charles Mwangi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Substitute Claimants and Act in Person After Consent Judgment
Legal Issues
- 1 Whether the Interested Parties can substitute the original Claimants after a consent judgment has been entered and the file closed.
- 2 Whether leave should be granted for the applicants to act in person in a concluded matter.
- 3 Whether grievances regarding payment of decretal sums by advocates justify reopening a settled case.
Ratio Decidendi
The Court held that the application to substitute the Claimants and to act in person was untenable because the matter had already been settled by a consent judgment, the file closed, and the decretal sum paid out. There was no pending suit before the Court, and the applicants were part of the original group that authorized the Claimants they now sought to replace. The Court found that any grievances regarding the payment of the decretal sum by the Advocates did not warrant reopening the proceedings or substituting parties. The proper forum for such grievances is the Law Society of Kenya or the Advocates Complaints Commission. The application was therefore rejected as an abuse of process.
Court Disposition
application dismissed
Orders
- The Application dated 24th September 2013 is rejected.
- Applicants may pursue the claim against their Advocate at the appropriate forum.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 732 (N) OF 2010
BETWEEN
FRANCIS NDICHU KAHIGA ……………………………………………. 1ST CLAIMANT
SAMUEL MAINA MWANIKI……………………………………………2ND CLAIMANT
ISAIAH NJOROGE MUGO……………………………………………….3RD CLAIMANT
(On their behalf and on behalf of 1458 employees of Mbo-I-Kamiti Farmers Co.
Ltd)
VERSUS
MBO-I-KAMITI FARMERS CO. LTD……………….…………………………………RESPONDENT
AND
JOSPHAT MUGO KAMAU
MURIITHI KAMAU MUINI
CHARLES MWANGI………………………………………….INTERESTED PARTIES/APPLICANTS
Rika J
CC. Mr. Kidemi
Mr. Josphat Mugo Kamau in person
Muriithi Muini in person
Mr. Charles Mwangi in person
_________________________________________________________________
RULING
1. Three persons Josphat Mugo Kamau, Muriithi Kamau Muini and Charles Mwangi, describing themselves as ‘Interested Parties’, filed an application dated 24th September 2013, seeking the following orders:-
The Interested Parties be allowed to substitute the Claimants in this matter.
Leave be granted for the applicants to act in person.
Costs be in the Cause.
2. Josphat Mugo Kamau swore an affidavit on 25th September 2012, explaining the basis upon which the application is brought. They claim that Francis Ndichu Kahiga, Samuel Maina Mwaniki and Isaiah Njoroge Mugo, who were at the initiation of the Claim authorized by 1458 Claimants to prosecute the Claim, have been compromised by the Respondent, and no longer have the Applicants’ interest at heart. They now claim the 1458 Claimants wish to authorize Josphat Mugo Kamau, Muriithi Kamau Muini and Charles Mwangi to replace Kahiga, Mwaniki and Mugo. They would also wish to act in person as their Advocate has been compromised by the Respondent.
3. The Court finds the Application dated 24th September 2013 unacceptable. There is no claim pending before this Court, a Consent Award having been registered between the Claimants and the Respondent, and money paid out in settlement pursuant to the Consent. The Applicants were part of the Claimants who authorized the persons they wish to replace. They are not Interested Parties. There is no pending suit that would justify replacement or withdrawal of Advocates.
4. The Court made a ruling on 12th April 2013, marking the Claim as settled, and file closed. Curiously, there is a purported consent between the Applicants and the persons they seek to replace, filed in this Court on 12th November 2013, which the Applicants have said nothing about. That consent sought to allow the application of 24th September 2013, and appears to be signed by the persons who are sought to be replaced, but is unsigned by the Applicants. There is mischief in the application of 24th September 2013.
5. It would be futile to issue orders of leave to the Applicants to act in person in a concluded matter. They seem to have issues with payment of decretal sum by their Advocates. That is not an issue that calls for revisiting of the proceedings by replacement of authorized Claimants and withdrawal of Advocates. If the Applicants have any grievances against their Advocates, the proper forum would be to seek the intervention of the Law Society of Kenya or the Advocates Complaints Commission, not seek to re-open a file the Court has declared shut. IT IS HEREBY ORDERED:-
The Application dated 24th September 2013 is rejected.
Applicants may pursue the claim against their Advocate at the appropriate forum.
Dated and delivered at Nairobi this 17th day of December 2013
James Rika
Judge