[2023] KEELRC 2876 (KLR)
The court found that the application dated 13 July 2023 was a gross abuse of the court process because it sought to relitigate issues that had already been conclusively determined in a prior application, which was dismissed on its merits. The mere change of advocates did not entitle the applicant to revive a...
Source-derived case information.
- Citation
- [2023] KEELRC 2876 (KLR)
- Parties
- Applicant: Kenya Medical Practitioners, Pharmacists and Dentists Union; Respondent: County Government of Nyamira
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 35 of 2020
- Procedural Posture
- Contempt Application / Ruling on Motion for Leave to Come on Record and Contempt
- Outcome
- application dismissed with costs
- Judges
- S Radido
- Legal Topics
- Contempt of Court, Change of Advocates, Return to Work Formula, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Medical Practitioners, Pharmacists and Dentists Union
Applicant
County Government of Nyamira
Respondent
Procedural Posture
Contempt Application / Ruling on Motion for Leave to Come on Record and Contempt
Legal Issues
- 1 Whether the application for leave to come on record by a new firm of advocates should be granted.
- 2 Whether the County Secretary of Nyamira should be held in contempt of court for alleged disobedience of court orders issued on 24th February 2021.
- 3 Whether the current application constitutes an abuse of court process given a similar application was previously dismissed.
Ratio Decidendi
The court found that the application dated 13 July 2023 was a gross abuse of the court process because it sought to relitigate issues that had already been conclusively determined in a prior application, which was dismissed on its merits. The mere change of advocates did not entitle the applicant to revive a previously dismissed application. The court held itself functus officio on the contempt issue and declined to adopt the Return to Work Formula, finding no legal or factual connection to the original cause of action. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Motion dated 13 July 2023 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
Kenya Medical Practitioners, Pharmacists and Dentists Union v County Government of Nyamira (Petition 35 of 2020) [2023] KEELRC 2876 (KLR) (15 November 2023) (Ruling)
Neutral citation: [2023] KEELRC 2876 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 35 of 2020
S Radido, J
November 15, 2023
Between
Kenya Medical Practitioners, Pharmacists and Dentists Union
Petitioner
and
County Government of Nyamira
Respondent
Ruling
1. For determination is a Motion dated 13 July 2023 by the firm of Mauwa & Co Advocates seeking orders:i.…ii.That this Honourable Court be pleased to grant leave to the firm of Mauwa & Co. Advocates to come on record for the Petitioner/applicant in place of the firm of D.L. Were & Co. Advocates, judgment in this matter having been entered by consent on 24th February 2021. iii.That the County Secretary in the County of Nyamira be held in contempt of Court for wilful disobedience of the court orders issued on 24th February 2021. iv.That upon being held in contempt, the said officer be jailed for a period of 6 months for disobedience of court orders or for such other period as the Court may deem just and appropriate.v.That in the alternative to prayer (4) above, this Court be pleased to mete out such punishment as it may deem appropriate to the contemnor and the said officer be ordered to purge the contempt.vi.That the costs of this application be borne by the Respondent.
2. The Court declined to certify the Motion urgent and the Union was directed to serve the Respondent.
3. The Court gave directions on 25 September 2023.
4. Instead of complying with the directions, the parties wrote a letter to the Court indicating that they had signed a Return to Work Formula, which they requested the Court to adopt in lieu of preparing and delivery this Ruling.
5. The Court has considered the Motion, affidavits, the record and the Return to Work Formula and makes the following findings.
6. Apart from the prayer in the Motion seeking leave for the firm of Mauwa & Co. Advocates to come on record, the instant application is a replica of a previous Motion by the Union dated 3 December 2021, alleging contempt.
7. In the aforesaid application, the Union sought orders:i...ii.That this Petition be fixed on a priority basis for notice to show cause why the Respondent’s County Secretary and Head of the County Public Service Board, County Chief Officer, Health Services and County Chief Officer Public Service Management should not be committed to civil jail.iii.That costs of this application be borne by the Respondent.
8. The Court considered the Motion and in a Ruling delivered on 18 May 2022, found that the Union had not demonstrated contempt. The application was dismissed.
9. The Union through the Motion under consideration is now attempting to resurrect an application on the same grounds and which application was duly considered on the merits.
10. The Court not only finds that it is functus officio, but that the instant application is a gross abuse of the court process.
11. The mere fact that a new firm of advocates has been instructed does not alter that fact. The said firm of advocates should have taken the time to update itself on the previous proceedings in the file instead of rushing to file an application similar to one which the Court had considered on the merits and dismissed.
12. And with respect to the parties, the Return to Work Formula has no legal and/or factual nexus to the initial cause of action presented by the Union in 2020 and the Court will not adopt it.
Conclusion and Orders 13. The Court finds the Motion dated 13 July 2023 a gross abuse of the court process and it is dismissed with costs.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISII ON THIS 15TH DAY OF NOVEMBER, 2023. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor the Union D.L. Were & Were Co. AdvocatesFor Respondent Nyachiro Nyagaka & Co. AdvocatesCourt Assistant Chrispo Aura