[2021] KEELRC 268 (KLR)
The court found that the miscellaneous proceedings had been extinguished upon the grant of leave to appeal out of time and the issuance of a conditional stay of execution on 25 June 2020. As such, there was no surviving proceeding to which the proposed claimant could be joined. Furthermore, the court had not...
Source-derived case information.
- Citation
- [2021] KEELRC 268 (KLR)
- Parties
- Applicant: Kisii County Government; Applicant: H.E. James Ongwae; Respondent: Jackson Moindi Ontegi; Proposed Claimant: Edna Kemunto Okeyo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Joinder and Review
- Outcome
- application dismissed
- Legal Topics
- Joinder of Parties, Review of Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kisii County Government
Applicant
H.E. James Ongwae
Applicant
Jackson Moindi Ontegi
Respondent
Edna Kemunto Okeyo
Proposed Claimant
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Joinder and Review
Legal Issues
- 1 Whether the proposed claimant can be enjoined as a second plaintiff after the proceedings were extinguished.
- 2 Whether there exists a judgment of this court capable of being stayed or reviewed.
- 3 Whether the application for review and stay is properly before this court.
Ratio Decidendi
The court found that the miscellaneous proceedings had been extinguished upon the grant of leave to appeal out of time and the issuance of a conditional stay of execution on 25 June 2020. As such, there was no surviving proceeding to which the proposed claimant could be joined. Furthermore, the court had not delivered any judgment capable of being stayed or reviewed, and no such judgment was exhibited by the applicant. If the judgment in question was that of the Magistrates Court, the application was made in the wrong forum. Consequently, the application was dismissed as legally misguided and without merit.
Court Disposition
application dismissed
Orders
- The Chamber Summons dated 3 June 2021 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISCELLANEOUS CIVIL APPLICATION NO. 1 OF 2020
KISII COUNTY GOVERNMENT............... 1st APPLICANT
H.E. JAMES ONGWAE ............................... 2nd APPLICANT
v
JACKSON MOINDI ONTEGI ........................RESPONDENT
AND
EDNA KEMUNTO OKEYO............PROPOSED CLAIMANT
RULING NO. 2
1. For determination is a Chamber Summons dated 3 June 2021 by Edna Kemunto Okeyo (proposed party) seeking orders:
(1) …
(2) THAT pending the hearing of this instant application inter-partes, there be a stay of implementation and execution of the judgment herein.
(3) THAT this Honourable Court be pleased to grant leave to the applicant herein to be enjoined to this suit as a 2nd Plaintiff.
(4) THAT judgment delivered herein be reviewed to include the Applicant as a judgment creditor in addition to the Plaintiff herein.
(5) THAT the costs of this application be provided for.
2. When the Summons came up for directions on 15 June 2021, the Court directed the parties to file and serve replies and submissions within set timelines.
3. The Respondent filed Grounds of Opposition to the Summons on 23 June 2021 (submissions were not on record by the agreed timelines).
4. The Court has keenly perused the Summons, affidavit in support and the entire file herein and come to the conclusion that the application is not only legally misguided but without merit for the following reasons.
5. First, on 25 June 2020, the Court granted the 2 applicants leave to file an Appeal out of time within 30-days. A conditional stay of execution was also granted on the basis that the applicants deposited the decretal sum in a joint interest-earning account in the names of the advocates on record.
6. With the grant of the orders, this miscellaneous proceedings became extinguished, and there would be no legal basis to join the proposed Claimant to a proceeding that did not survive past the delivery of the Ruling on 25 June 2020.
7. Second, this Court has not delivered any judgment capable of being stayed or reviewed.
8. Indeed, there is no judgment exhibited by the proposed Claimant.
9. If the judgment sought to be reviewed was the one delivered by the Magistrates Court, then the proposed party approached the wrong forum.
10. The Summons is dismissed with no order on costs considering that the proposed party and the Respondent are family.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 8TH DAY OF DECEMBER 2021.
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For applicants Kennedy Chweya Onsembe, County Attorneys Chambers
For Respondent Gichaba & Co. Advocates
For proposed party D.K. Otwere & Co. Advocates
Court Assistant Chrispo Aura