[2017] KEELRC 1654 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 377 OF 2015

KENYA HOTELS & ALLIED WORKERS UNION CLAIMANT

v

GREAT RIFT VALLEY LODGE & GOLF RESORT/

GREEN PARK & COUNTRY COMPLEX RESPONDENT

KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL

INSTITUTIONS, HOSPITALS &

ALLIED WORKERS INTERESTED PARTY

KENYA ASSOCIATION OF HOTEL KEEPERS AND

CATERERS PROPOSED INTERESTED PARTY

RULING NO. 2

1. This ruling relates to an application by the Proposed Interested Party, Kenya Association of Hotel Keepers and Caterers dated 16 December 2016.

2. For the record, it is germane to note that the Cause was heard on the basis of the record and submissions and a judgment was delivered on 2 September 2016.

3. In the judgment, the Court ordered the Respondent to grant recognition to the Claimant Union within 21 days. A decree was extracted and issued on 12 January 2017.

4. The Respondent and the Interested Party being aggrieved with the judgment successfully moved Court to grant stay of execution pending appeal against the judgment.

5. The Court in a ruling rendered on 2 December 2016 granted stay of execution for a limited period to enable the Intended Appellants to move the Court of Appeal appropriately.

Proposed Interested Party’s application

6. The application by the Proposed Interested Party seeks orders

1. THAT the proposed 2nd Interested Party be enjoined in the above suit.

2. THAT the application filed herein be certified urgent and service thereof be dispensed with in the first instance

2. THAT KENYA ASSOCIATION OF HOTEL KEEPERS AND CATERERS, the applicant herein be and is hereby granted leave to join the proceedings as an interested party.

3. THAT orders (sic) for this application be provided for.

7. The Claimant Union filed a replying affidavit in opposition to the application for joinder of the Proposed Interested Party on 27 January 2017.

8. When the motion was called out for arguments on 28 February 2017, the Proposed Interested Party’s advocate Mr. Ongoto was not in Court but Mr. Maragia who held his brief sought an adjournment on the ground that he was held up in Kajiado Petition No. 5 of 2016 (details of parties were not disclosed).

9. The Court declined to grant an adjournment and directed the application to be urged and reserved reasons for refusing the adjournment.

10. The Court primarily declined to grant an adjournment because one, there was no evidence that the Proposed Interested Party had complied with the orders of 23 January 2017 to serve the application upon the Respondent and two, it did not make full and frank disclosure as to the details of the case the advocate who filed the application was involved in Kajiado and lastly, the date for urging the application was taken at the request of an advocate holding brief for the Proposed Interested Party’s advocate about a month earlier (23 January 2017).

11. The Court therefore directed it would hear the application.

12. However, after going through the cause list, the application was called but Mr. Maragia was not in Court. His whereabouts were unknown.

13. The Court in the event allowed the Claimant Union to make brief oral submissions.

14. The Court has considered the material available to it and come to the conclusion that the application to bring on board the Proposed Interested Party lacks merit and should be dismissed for the following reasons.

15. One, with the judgment rendered on 2 September 2016, the Court became functus officio in so far as the merits of the respective parties involved were concerned. The respective parties with substantial interest in the dispute were the Claimant Union and the Respondent (the Interested Party (KUDHEIHAs) advocate on record successfully applied to withdraw from acting for lack of instructions on 29 July 2016).

16. Two, the Respondent is a member of the Proposed Interested Party and it was aware at all times of the substance of the case it was to meet and if it felt that the Proposed Interested Party was a proper and correct party to advance its (Respondent’s) interests as a member thereof, it ought to have given instructions to the Proposed Interested Party in good time.

17. In other words, the Respondent was at liberty to request the Proposed Interested Party to advance its case in terms of the provisions of the Labour Relations Act instead of engaging the Federation of Kenya Employers which conducted the case.

18. Before concluding the Court must place it on record that the some of the parties involved in this litigation appear to be engaged in a game of running circles around the Claimant Union (as the Court as was observed in the judgment of 2 September 2016).

19. The Court in effect orders that the Proposed Interested Party’s motion dated 16 December 2016 be dismissed with costs. It should pay Claimant Union costs of the application assessed as Kshs 25,000/-.

Delivered, dated and signed in Nakuru on this 17th day of March 2017.

Radido Stephen

Judge

Appearances

For Claimant Union Mr. Simiyu, Deputy Secretary General

For Respondent Federation of Kenya Employers (Absent)

Proposed Interested Party Mr. Maragia instructed by C. M. Ongoto & Co. Advocates

Court Assistant Nixon