https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2165

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **ELRC CAUSE NO. E747 OF 2021** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **KENYA COUNTY GOVERNMENT** **WORKERS UNION.........................................................CLAIMANT** **VS** **NAIROBI WATER & SEWERAGE CO. LTD………..1ST RESPONDENT** **KENYA UNION OF COMMERCIAL** **AND ALLIED WORKERS……………………………..2ND RESPONDENT** **KENYA UNION OF WATER &** **SEWARAGE EMPLOYEES……………………………..3RD RESPONDENT** **REGISTRAR OF TRADE UNION……………………4TH RESPONDENT** **NATIONAL UNION OF WATER&** **SEWERAGE EMPLOYEES……………………..…INTERESTED PARTY** **RULING** 1. The Interested Party/Applicant filed a Notice of Motion application dated 24th May 2023 2. *Spent* 3. *THAT a conservatory order be issued to compel the CS Ministry for Labor to revoke, vacate or stay the Gazette Notice No. 36 of 2023, and the letter dated 11th May 2023 by the 4th Respondent. Pending the final determination of this suite and memorandum of claim herein.* 4. *THAT this Honourable Court be pleased to Issue Interim Mandatory Injunction against the 1st Respondent NOT to deduct the agency fee from Non- Unionsable Members of 3rd Respondent herein, his servants, agents or any other persons acting pursuant to or under his direction to allow the remittance of any union dues to the 3rd Respondent. And not to allow the 3rd Respondent to access the disputed Bank account number 01120201219200 at Cooperative Bank of Kenya, Buru Buru Branch. Pending the hearing and determination of this suit and memorandum of claim, herein.* 5. *THAT this Honourable court be pleased to issue mandatory injunction against 1st Respondent to commence deduction of the agency fee within the period as indicated by the DECREE of this court dated 9th February 2012 being ELRC NO. 1648 OF 2011 & ELRC NO. 2062 OF 2012. From 1st October 2012 and remit the same to NATIONAL UNION OF WATER AND SEWERAGE EMPLOYEES ACCOUNT NUMBER 01020060636400 National Bank of Kenya Harambee avenue Nairobi.* 6. *THAT the interested party/applicant also pray this honorable court to be pleased to issue an order compelling the Executive officer Milimani law court to nominate authorized person(s) to make and give.CI VINCENT KOKENO. A police officer and an investigator attached to the 3rd Respondent police case number 045/26/2023, CC NO.162 of 2023, the copies of document, materials and persons involve, by the 3rd respondent to change names of the legitimate official for the fake officials and the name of the union to KUWASE to inter arrogate and investigate. The CRIME involves.* **Interested Party/Applicant’s Case** 1. The Applicant avers that on 21st March 2023, Hon. Justice Anna N. Mwaure issued an order that the ruling would be delivered on 21st July 2023, and that the same was served upon the Claimant and the 4th Respondent on 29th March 2023. 2. The Applicant contends that there exists open gross misconduct, conspiracy, abuse of office and integrity issues on the part of the Claimant, the 1st Respondent, the 3rd Respondent and the 4th Respondent, and avers that orders of the Court have been disobeyed with impunity, through trickery on the part of these parties. 3. It is the Applicant's case that Gazette Notice No. 36 of 2023 was obtained by misinformation and non-disclosure of material facts by the 3rd Respondent and the Claimant. 4. The Applicant further avers that the 4th Respondent attempted to chameleonize the Claimant by authorizing it, through a letter, to recruit an employee of the 1st Respondent, which the Applicant contends is indicative of abuse of office and gross misconduct on the part of the 4th Respondent. 5. The Applicant contends that the 3rd Respondent has no mandate to enter into any collective bargaining agreement or to receive any agency fee, as per the ruling and order of Hon. Justice Nzioki Wa Makau dated 27th June 2022, in ELRC No. E747 of 2021. 6. It is averred that the Applicant, on or about 12th July 2022, lodged in ELRC Petition No. E106 of 2021 a Preliminary Objection dated 12th July 2022, together with a Notice of Motion dated 21st July 2022, seeking to participate in a conclusion exercise regarding the purported registration of a Collective Bargaining Agreement between the 3rd Respondent and the 1st Respondent, being CBA No. E172 of 2022, RCA No. 207 of 2022, dated 28th July 2022, and avers that the ruling on the same is pending, with active orders in place. 7. The Applicant avers that the purported CBA No. E172 of 2022 between the 1st Respondent and the 3rd Respondent is therefore illegal and unconscionable, with related matters still pending before the Constitutional Court in HCC No. E208 of 2021 and ELRC No. E106 of 2021. 8. It is contended that the said Collective Bargaining Agreement purports to cover 3,000 unionisable employees, per a list and letter dated 2nd February 2011. The 1st Respondent had earlier, on 28th May 2010, issued a circular to all its employees on the issue of the Collective Bargaining Agreement and union dues. 9. The Applicant relies on the Minister's Gazette Notice No. 8340 dated 23rd July, 2010, on agency fees, and avers that the said orders directed that deductions were to commence within 30 days of receipt thereof by the 1st Respondent, and that a list of employees from whom deductions were to be made was accordingly prepared. 10. The Applicant avers that from 1st September 2011, to date, nothing has been paid to it; and the 1st Respondent has neglected or failed to deduct and remit union dues to it despite the Minister's gazettement. 11. It is contended that there is no lawful reason for the 1st Respondent to withhold the deducted sums, now amounting to Kshs. 320,563,200, for the period between 1st September 2011 and 30th September 2012, together with arrears to date. 12. The Applicant avers that the 1st Respondent and the Claimant are in flagrant contempt of the said orders and Ministerial notice, amounting to an offence under section 50 of the Labour Relations Act, 2007, and asserts that it is guaranteed, under the Constitution of Kenya, speedy access to justice and a hearing and determination of the matter on its merits. **Claimant’s Case** 1. In opposition to the application, the Claimant filed a Notice of Preliminary Objection dated 7th June 2023 and prays for the same to be dismissed on the GROUNDS: - 2. *THAT this Honorable Court is functus officio in the matter, Hon. Justice Nzioki Wa Makau having delivered his ruling dismissing the same on 27th June, 2022, hence this Honorable Court lacks the jurisdiction to entertain, hear, and/or determine the application and the claim.* 3. *THAT the Claimant Applicant lacks the /ocus standi to institute this application or claim in a dismissed suit, being ELRCC/E747/2021, as an interested party. not having been joined to the proceedings in that suit, Honorable Nzioki Wa Makau having ruled on 27th June, 2022 that there was no suit in which to join it.* 4. *THAT the matter is res judicata, the issues raised herein having been conclusively determined by the ruling of Hon. Justice Nzioki Wa Makau vide his ruling dated 27th June, 2022.* 5. *THAT the Claimant herein having filed a notice of appeal dated 7th July, 2022 indicating an intention to challenge the Honorable Court’s order dismissing the suit, this Honorable Court’s jurisdiction to entertain a similar suit is ousted.* 6. *THAT the application and the claim raise no single cause of action against the Claimant herein, hence the same is hopelessly defectively.* 7. *THAT, therefore, the application and the claim are an abuse of the Court process as the Claimant Applicant has filed the same in a non-existing, dismissed suit, being ELRCC/E747/21 and haphazardly joined other parties that were never part of the initial suit.* 8. *THAT, consequently, the application and/or claim are incompetent, hopeless, and frivolous, and are thus proper candidates for striking out and/or dismissal with costs to the Claimant.* 9. In further opposition to the application, the Claimant filed a replying affidavit dated 18th March 2026, sworn by Roba Sharu Duba, its General Secretary. 10. The Claimant avers that the instant application, is scandalous, vexatious, frivolous, meritless, and an epitome of abuse of the court process, and hence a perfect candidate for dismissal with costs. 11. The Claimant states that this matter was initially instituted by it vide an application and statement of claim dated 2nd September, 2021, against the 1st Respondent, seeking orders compelling the 1st Respondent to deduct and remit trade union dues to it. 12. It avers that in a ruling delivered on 27th June, 2022, the Court dismissed the suit with costs to the 1st Respondent, and that this was the end of the matter. However, since then the Applicant has been reviving the closed matter through numerous frivolous, vexatious and inelegantly drafted applications to pursue fresh causes of action against the Claimant and the 1st Respondent. 13. The Claimant avers that the purported Interested Party had also made an application dated 18th October, 2021, in the same suit seeking to be joined as an interested party, but it was never subsequently joined, the Court having held at paragraph 11 of its decision of 27th June, 2022, since there was no suit, there was no need to join the Interested Party to the cause. 14. It is the Claimant's case that the Applicant is consequently not properly a party to this matter, has not sought any fresh order to be joined to the proceedings, and that its instant application is therefore fatally incompetent and hopelessly defective. 15. The Claimant further avers that the Applicant herein has no locus standi or capacity to institute the instant application, being a non-existent and non-registered trade union under the Labour Relations Act, 2007, a fact affirmed by the Court in ***Kenya County Government Workers Union v Nairobi City Water & Sewerage Co Ltd & 3 others; National Union of Water & Sewerage Employees (Interested Party) [2023] KEELRC 2502 (KLR)***, delivered on 13th October, 2023. The Court had the benefit of summoning the Registrar of Trade Unions, Mrs. Beatrice Mathenge, on 21st March, 2023, and was informed that the registered union was KUWASE, there having been a change of name from NUWASE to KUWASE, evidenced by a change of name certificate, as there was no union known as NUWASE currently in existence. The Claimant cites the Court's finding that *"The Court finds and holds that NUWASE is no longer a legally recognized Union..."* 16. The Claimant avers that there is no evidence that the Applicant reviewed or appealed the said decision declaring it non-existent as a trade union in Kenya. It contends that locus standi or capacity to sue and be sued by a trade union is conferred by its registration under the Labour Relations Act, 2007, such that the confirmed non-existence of the Applicant means it has no standing to institute the instant application. 17. The Claimant further avers that the Court, having delivered its decision and dismissed the suit, is now *functus officio* and lacks jurisdiction to hear and determine the Applicant's instant application. 18. It is the Claimant's case that even assuming the Applicant were a legally registered and recognized trade union, which it is not, the proper course would have been to file a separate suit against the Respondents, rather than pursue the same in a matter to which it is not properly a party and which is already closed. 19. The Claimant urges the Court to stop the Applicant from inundating and clogging the Court with successive applications in a matter that is closed or already determined, given that it is not a legally recognized trade union under the Labour Relations Act, 2007. 20. The Claimant avers that it is, in contrast, an existing and duly registered trade union with a valid recognition agreement with the 1st Respondent dated 18th February, 2013. This agreement has never been validly revoked under the relevant provisions of the Labour Relations Act, 2007, and remains in force, such that it is the Claimant, and not the Applicant, to whom trade union dues deducted by the 1st Respondent ought to be remitted. 21. The Claimant urges the Court to dismiss the same with costs, for being frivolous, scandalous, vexatious, hopeless, incompetent, defective, a waste of the Court's time, and an abuse of the court process. **1st Respondent’s Case** 1. In opposition to the application, the 1st Respondent filed Grounds of Opposition dated 30th April 2026 on grounds THAT: - 2. *The Application is incompetent, misconceived, bad in law, and an abuse of the process of this Honourable Court.* 3. *This Honourable Court is functus officio, the Claim herein having been fully heard and conclusively determined by a Ruling delivered on 27th June 2022, wherein the Claim was dismissed with costs to the 1st Respondent.* 4. *The issues raised in the Application are res judicata, the same having been directly and substantially in issue in the Claim that was heard and finally determined by this Honourable Court.* 5. *The purported Interested Party lacks locus standi to institute and/or prosecute the present Application, not having been a party to the proceedings herein and lacking any recognizable legal interest in the matter.* 6. *The Applicant cannot, in law, introduce a new cause of action or seek substantive reliefs in a matter that has already been conclusively determined.* 7. *The orders sought, including mandatory injunctive orders, are untenable in law in the absence of a subsisting suit or pending claim before this Honourable Court.* 8. *The Application offends the doctrine of finality of litigation and is calculated to prejudice the 1st Respondent and undermine the integrity of this Honourable Court’s decision.* 9. *The Application is an afterthought aimed at reopening and relitigating a dispute that has already been conclusively settled.* **3rd Respondent’s Case** 1. In opposition to the application, the 3rd Respondent filed a replying affidavit dated 2nd June 2023, sworn by Elijah Otieno Awach, its General Secretary. 2. The 3rd Respondent avers that the application is defective and contrary to section 2(a) as read with section 35(6) of the Labour Relations Act, 2007. Further, the Interested Party/Applicant lacks *locus standi* to bring the suit. 3. The 3rd Respondent contends that the application and suit are r*es judicata*, the issues raised having already been determined in Cause No. 1648 of 2011 and Cause No. E747 of 2021, under which the Applicant was paid the decretal sum while still serving as treasurer of the former National Union of Water and Sewerage Employees in 2012. 4. It avers that the Applicant ought to pursue any grievance of disobedience of orders within those file numbers by way of execution, rather than filing a fresh memorandum of claim seeking to relitigate matters executed twelve years ago. 5. The 3rd Respondent denies the contents of paragraph 1 of Philemon Otieno Atik's supporting affidavit, on the basis that the deponent has not annexed authority to swear an affidavit and plead on behalf of the General Secretary as required under section 2(e) of the Labour Relations Act, and avers that there is no union existing under the name National Union of Water and Sewerage Employees, as confirmed by the Registrar of Trade Unions on 21st March, 2023, before Hon. Justice Anna Mwaure. 6. The 3rd Respondent invites the Court to peruse the documents presented by the Registrar concerning the change of name and constitution of the 3rd Respondent from National Union of Water and Sewerage Employees to Kenya Union of Water and Sewerage Employees, annexing the Registrar's letter dated 18th March, 2020, together with certificates of change of name and constitution. 7. The 3rd Respondent avers the ruling dated 21st July 2023 was strictly on the existence and validity of the Interested Party, therefore, the preliminary objections raised by other parties and the Applicant's application remain undetermined. 8. It avers that the Applicant has not disclosed its interest in Gazette/Legal Notice No. 36 of 2023, and Philemon Otieno Atik is neither an employee of the 1st Respondent nor a member of the Claimant or the 3rd Respondent. He is a former employee of the 1st Respondent and a former official of the Interested Party prior to its change of name and constitution. Further, the Applicant has not made the Cabinet Secretary for Labour, a party to the proceedings. 9. In response to the Applicant's averments on disobedience of court orders, the 3rd Respondent contends that the persons listed in the annexure of purported employees have not been made parties to the instant suit, and that the law requires proper parties, whose rights and obligations arise from the cause of action, to be identified before an action can succeed. 10. It avers that the order of Justice Nzioki Wa Makau dated 27th June 2022, relied upon by the Applicant has not been annexed to prove the allegation, and invites the Court to confirm that the 3rd Respondent was not a party to the proceedings in ELRC Cause No. E747 of 2021, having instead been joined by the Interested Party, who lacked capacity and locus standi to bring such an application. 11. The 3rd Respondent denies the allegation of illegality regarding the purported CBA, averring that the issues raised in HCC No. E208 of 2021 are the same as those raised in the pending application in ELRC No. E747 of 2021, which was, at the time, pending mention for directions before Hon. Justice Bernard Manani. 12. It further avers that the agency fees referred to by the Applicant were in fact paid to him in 2012 during his tenure as National Treasurer, rendering the claim redundant. **Applicant's Submissions** 1. The Applicant submitted that since the Respondents filed only Grounds of Opposition rather than a replying affidavit, therefore, the facts as presented by the Applicant remain unchallenged. It placed reliance on [***Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/606/eng%402014-04-04), where the Court of Appeal held that where respondents file grounds of opposition as opposed to a replying affidavit, the allegations against them remain unrebutted and are *prima facie* true. 2. On the question of *functus officio*, it was submitted that the instant application was filed well before the ruling of Hon. Lady Justice Anna Ngibuini Mwaure delivered on 13th October, 2023, in which the learned Judge, having dispensed with the application dated 2nd October, 2022, directed the Applicant to proceed to prosecute the present application. The Court held:*“The court finds and holds that NUWASE is not a legally recognised union. Therefore, its application dated 2nd October 2022 is dismissed in its entirety and costs will be borne by the interested party/applicant. If the interested party wishes to proceed with his application dated 24th May, 2023 he could proceed to take a hearing date before any other Judge of this division.”* 3. It was submitted that this ruling explicitly gives leeway for the present application to be heard on its merits, and that the Court has neither decided with finality the legal capacity of the Applicant nor the substantive issues raised in the present application. The ruling shows that this Court is empowered to re-engage with the case, rendering the doctrine of functus officio inapplicable. 4. In support thereof, the Applicant cited [***Telkom Kenya Ltd v Ochanda [2014] KECA 600 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/600/eng%402014-05-09): “*The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550…”* 5. It is the Applicant’s submission that since the suit herein was not decided on its merits, the doctrine does not apply. The Court records will demonstrate that this matter is still alive before court, with even the Claimant's interlocutory application yet to be determined. 6. It was submitted that the intended interested party has surmounted this first requirement by lodging this application timeously when the matter is still nascent and no adverse orders issued. 7. On *locus standi*, the Applicant submitted that its capacity to prosecute the present application is self-evident from the ruling of 13th October, 2023, which remains valid, having neither been set aside nor successfully appealed. The Court could not have issued orders for costs against, or directed to prosecute a pending application, an entity found to be non-existent. 8. It submitted that a court order remains valid and invites compliance unless set aside, relying on [***D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another[1980] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1980/3/eng%401980-03-18), for the proposition that: *"it is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction, to obey it unless and until, that order is discharged."* 9. The Applicant further submitted that it is in fact the Claimant which was declared to have no locus standi on matters of representation of workers in the water sector. 10. On whether the Applicant deserves the prayers sought, reliance was placed on the ruling of Justice Nzioki Wa Makau delivered on 27th June, 2022, in the suit herein, holding that: *“The Court is persuaded by these decisions of the Court and the Court of Appeal that the Claimant has no business representing the members of the Respondent notwithstanding the fact that there was a CBA registered. As indicated in prior Rulings of this Court and the Court of Appeal that is neither here nor there and as such the Claimant should leave the business of representation of the employees of the Respondent which operates in the water sector to the appropriate union which is NUWASE the proposed interested party. As such the suit before the Court is a complete waste of precious judicial time as well as a blatant abuse of the court process the Court of Appeal having made a determination which has been reinforced by the Principal Judge of this Court. The decision of the Court of Appeal and that of Onyango J. are clear, the Claimant as having no locus standi here as the matter of union dues is not within its mandate. The suit is dismissed with costs to the Respondent.”* 11. It was submitted that this determination, made by both the Court of Appeal and this Court, declared that the Interested Party is the appropriate union to represent employees of the 1st Respondent. This has not been controverted by any of the Respondents, therefore, the opposition to the application is an attempt to frustrate the Applicant from obtaining the benefit of decisions made in its favour. 12. Relying [***Republic v Attorney General & another Exparte James Alfred Koroso [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/90/eng%402013-03-19)***,*** the Applicant submitted that it is deserving of the orders in the present application so as to ensure the rights of access to justice are not violated. 13. It is the Applicant’s submission that it has demonstrated the numerous orders issued in its favour by courts of competent jurisdiction, including the Court of Appeal, and has annexed a decree of the Industrial Court which the 1st Respondent has been reluctant to implement. **Claimant’s Submissions** 1. The Claimant submitted on three issues: whether the Applicant herein has the locus standi to institute the instant application; whether this Honorable Court is functus officio in this matter; and whether, if the answers to (i) and (ii) above are in the negative, this Honorable Court still has the jurisdiction to hear and determine the instant application. 2. On locus standi, the Claimant submitted that although the Applicant has named itself an Interested Party, it is not truly such, having never been properly joined or allowed into the proceedings by any court. 3. It was submitted that the suit was initially filed by the Claimant only against the 1st Respondent, and the Applicant, in what was termed a bizarre and alien procedure, began adding other parties including the 2nd, 3rd and 4th Respondents, who had neither been sued by the Claimant nor themselves applied for joinder. 4. The Claimant submitted that the Applicant's own application dated 18th October 2021, seeking joinder, suffered a natural death upon dismissal of the Claimant's claim vide the ruling of 27th June 2022, wherein the Court held that: *"since there is no suit, there is no need to join the Interested Party to the cause."* It argued that on this ground alone, the application is seriously misconceived, fatally and hopelessly incompetent and defective, and an abuse of the court process. 5. The Claimant further submitted that the Applicant lacks locus standi for being a non-existent, unregistered trade union, relying on the definition of locus standi in Black's Law Dictionary, 9th Edition, as *"the right to bring an action or to be heard in a given forum."* It further relied on[***Alfred Njau & 5 others v City Council of Nairobi[1983] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1983/56/eng%401983-06-28), that: *"the term locus standi means a right to appear in Court and, conversely... to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding."* 6. It was acknowledged that the Constitution of Kenya, 2010 has expanded the scope of *locus standi*, but it was submitted, relying on [***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/6/eng%402014-12-09): *“this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process.”* 7. The Claimant submitted that a trade union acquires legal standing upon registration under the Labour Relations Act, 2007, and that the Applicant's non-existence and non-registration was confirmed by this Court in [***Kenya County Government Workers Union v Nairobi City Water & Sewerage Co Ltd & 3 others; National Union of Water Sewerage Employees (Interested Party) [2023] KEELRC 2502 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2502/eng%402023-10-13), delivered 13th October, 2023, wherein it was held: *“The court had the benefit of summoning the Registrar of Trade Union Mrs Beatrice Mathenge on 21st March 2023 and she informed the court the registered union was KUWASE as there was a change of name from NUWASE to KUWASE and she produced a change of name certificate. She affirmed there was no Union known as NUWASE currently………… The court finds and holds that NUWASE is not a legally recognised union.”* 8. It is the Claimant’s submission that since the Applicant herein has since ceased being a trade union in Kenya, which cessation both the Registrar of Trade Unions and this Court have confirmed, the Applicant herein is bereft of the requisite legal standing or locus standi to institute its instant application. 9. On functus officio, the Claimant submitted that public policy demands finality of litigation, relying on [***Wanyonyi Chekerie v John Masai & another [2022] KEELC 1771 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1771/eng%402022-01-27)***:*** *“By the term functus officio it means the officer (of the Court for that matter) has fully performed his or her office or work: he has finished all he is required to do and cannot therefore do anything more. ……. Thus, once the process is finished, the work of the Court ends. The Court cannot go back to the merits of its decision until a higher Court orders otherwise.”* 10. It is the Claimant’s submission that the ruling of 27th June 2022, resolved the matter with finality, hence the instant application is a misguided attempt by the Applicant herein to re-open a closed matter in which, to begin with, it has not even been properly admitted as a property party. 11. It submitted that the Applicant has not shown that the instant application is part of incidental or supplemental proceedings such as execution, or that any of the exceptions to the *functus officio* doctrine, being the slip rule and correction of errors, apply to the instant matter. 12. On jurisdiction, the Claimant submitted that the issues of *locus standi* and *functus officio* are jurisdictional issues going to the competency of the Court, and that a court that lacks jurisdiction must down its tools immediately, whether *suo motu* or upon a party's application, relying on [***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1989/48/eng%401989-11-17). 13. It is the Claimant’s submission that having demonstrated that the application is barred by both doctrines, the Court lacks jurisdiction over it, and that anything done without jurisdiction is a nullity*ab initio*. 14. The Claimant submitted that the application is unmerited, a waste of the Court's time and resources, and an abuse of the court process. **1st Respondent’s Submissions** 1. The 1st Respondent submitted on three issues: whether this Honourable Court is functus officio; whether the Applicant has the requisite locus standi to maintain the present application; and whether the application amounts to an abuse of the Court process. 2. On *functus officio*, the Claimant submitted that the doctrine dictates that once a court has performed its judicial function and rendered a final determination, therefore, it lacks jurisdiction to revisit the merits of the same dispute save in circumstances expressly provided by law. Reliance was placed on [***Kenya Deposit Insurance Corporation (as Liquidator of Dubai Bank Kenya Limited) v Rapid Communications Limited & 2 others; Bank of Africa Kenya Limited & 2 others (Interested Party) [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/410/eng%402019-07-19)***.*** 3. The 1st Respondent submitted that the Court delivered its ruling on 27th June, 2022, conclusively disposing of the claim and thereby exhausting its adjudicative mandate. Therefore, the Applicant's present application, seeking to revive and reopen those proceedings, directly offends the doctrine and the principle of finality, the Applicant being unable to invoke the Court's jurisdiction merely because it now wishes to participate in proceedings long since ended. 4. On *locus standi*, it was submitted that the application is equally defective for want of locus standi. It is common ground that the Applicant was never joined as a party, a fact it had itself acknowledged by filing its joinder application of 18th October, 2021. 5. The 1st Respondent submitted that a person not admitted into proceedings lacks the legal standing to seek substantive reliefs therein, relying on [***Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1601/eng%402024-11-08), that: *“Locus standi is cardinal in civil proceedings because without it, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction. In* ***Amlers Precedents of Pleadings, Lexis Nexis LTC Harms et al 2018 on page 248*** *the following is said: “The question of locus standi is in a sense procedural,but it is also a matter of substance. It concerns the sufficiency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and there are no fixed rules.”* 6. The 1st Respondent submitted that having never been joined in the proceedings, the Applicant remains a stranger to the suit and cannot purport to seek orders affecting proceedings in which it was never a participant. The Applicant's application for joinder never culminated in an order admitting it into the proceedings. Consequently, no rights accrued to the Applicant capable of being enforced before this Court. 7. It is the 1st Respondent’s submission that the Applicant cannot purport to exercise procedural rights reserved for parties to litigation while simultaneously remaining a non-party. Therefore, the Applicant lacks the requisite standing to sustain the present application. 8. On abuse of process, the 1st Respondent submitted that the application amounts to a clear abuse of the court process, as litigation exists to determine disputes conclusively and not to provide an endless platform for parties and non-parties to relitigate matters after final determination. It cited [***Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/453/eng%402009-06-05)wherein the Court of Appeal held that abuse of court process includes proceedings that are frivolous, vexatious or intended to improperly interfere with the administration of justice. 9. It is the 1st Respondent’s submission that the Applicant seeks to reopen proceedings approximately one year after the Court's final ruling despite never having been admitted into the suit. It argued that such conduct undermines finality, wastes judicial time, and occasions prejudice to the 1st Respondent, which is entitled to rely on the finality of the Court's determination. 10. It submitted that the Court should guard against attempts to circumvent procedural safeguards through collateral applications reviving already-determined disputes. 11. I have examined all the averments and submissions of the parties herein. From the proceedings on the file, the IP/applicant filed a notice of motion application dated 2/10/2023 seeking among other orders joinder in the case. Vide a ruling of this court (Hon. J. Mwaure of 13/10/2023) the court found that NUWASE is not a legally recognized trade union and therefore dismissed the said application of 2/10/2023. 12. The same applicant NUWASE has come to court again vide the application of 24/10/23 seeking similar orders or deductions of union dues. 13. My position on this application is that the court having found that the IP/applicant is not a legally recognized union, it follows that they have no *locus t*o file any application before this court unless there is evidence of the change of their status. 14. In this courts view, the matter in relation to this application cannot be re-litigated again. The court is indeed *focus officio* and the only court that can determine the pending issue is the Court of Appeal. I therefore find that this application lacks merit and the same is dismissed accordingly with costs. **Dated, Signed and Delivered virtually at Nairobi this 27th Day of July 2026.** **HELLEN WASILWA** **JUDGE**