[2024] KEELRC 13386 (KLR)
The Court found that the Respondents, through their advocate, had misrepresented to the Court that a Notice of Preliminary Objection had been filed and served, when in fact no such document existed on the record. This amounted to professional misconduct. Given the absence of any proper challenge to the Claimants'...
Source-derived case information.
- Citation
- [2024] KEELRC 13386 (KLR)
- Parties
- Applicant: Jorum Mwei Mutiso; Applicant: David Ndungu; Applicant: Bosco Muriithi; Applicant: Margaret Kanake; Applicant: Raphael Maganga; Respondent: Peter Gikonyo; Respondent: Tom Wanambisi; Respondent: Josephine Ndikwe; Respondent: Stella Thuo; Respondent: Joseph Mwaura; Respondent: Bonface Mwangangi; Respondent: Wifenzio Njeru; Respondent: Bonface Njoroge; Respondent: Jimmy Simbi Wamalwa; Respondent: Nicholas Ondimu; Respondent: Joseph Kimemia; Respondent: Registrar of Trade Unions; Respondent: Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E688 of 2024
- Procedural Posture
- Employment and Labour Cause / Interlocutory Application (ruling on Interim Injunction and Wasted Costs)
- Outcome
- Interim injunction granted; costs personally ordered against Respondents' advocate for professional misconduct.
- Judges
- S Radido
- Legal Topics
- Trade Union Governance, Interim Injunctions, Professional Misconduct, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jorum Mwei Mutiso
Applicant
David Ndungu
Applicant
Bosco Muriithi
Applicant
Margaret Kanake
Applicant
Raphael Maganga
Applicant
Peter Gikonyo
Respondent
Tom Wanambisi
Respondent
Josephine Ndikwe
Respondent
Stella Thuo
Respondent
Joseph Mwaura
Respondent
Bonface Mwangangi
Respondent
Wifenzio Njeru
Respondent
Bonface Njoroge
Respondent
Jimmy Simbi Wamalwa
Respondent
Nicholas Ondimu
Respondent
Joseph Kimemia
Respondent
Registrar of Trade Unions
Respondent
Attorney General
Respondent
Procedural Posture
Employment and Labour Cause / Interlocutory Application (ruling on Interim Injunction and Wasted Costs)
Legal Issues
- 1 Whether the Respondents breached the Kenya Coffee Producers Association Constitution by failing to call a lawful Annual General Meeting.
- 2 Whether the Respondents' advocate misrepresented to the Court the filing and service of a Notice of Preliminary Objection.
- 3 Whether interim injunctive relief should be granted to preserve the status quo of the Association.
Ratio Decidendi
The Court found that the Respondents, through their advocate, had misrepresented to the Court that a Notice of Preliminary Objection had been filed and served, when in fact no such document existed on the record. This amounted to professional misconduct. Given the absence of any proper challenge to the Claimants' application and to preserve the status quo of the Kenya Coffee Producers Association, the Court granted a temporary injunction restraining the Respondents from transacting on behalf of the Association or its accounts. Further, the Court ordered the Respondents' advocate to personally bear the wasted costs due to his misconduct, to be paid before the next scheduled hearing date.
Court Disposition
Interim injunction granted; costs personally ordered against Respondents' advocate for professional misconduct.
Orders
- A temporary injunction is issued restraining the Respondents and their agents from carrying out any transactions for and on behalf of the Kenya Coffee Planters Association or its accounts at Cooperative Bank Wakulima House Branch pending further directions on 21 November 2024.
- Mr Kanyoko Advocate to personally bear the wasted costs in the sum of Kshs 10,000/-.
Full Case Text
Judgment text and source record
60 paragraphs
Mutiso & 4 others (Suing on Their Own Behalf and on Behalf of Members of KCPA) v Gikonyo & 12 others (Cause E688 of 2024) [2024] KEELRC 13386 (KLR) (22 October 2024) (Ruling)
Neutral citation: [2024] KEELRC 13386 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E688 of 2024
S Radido, J
October 22, 2024
Between
Jorum Mwei Mutiso
1st Claimant
David Ndungu
2nd Claimant
Bosco Muriithi
3rd Claimant
Margaret Kanake
4th Claimant
Raphael Maganga
5th Claimant
Suing on Their Own Behalf and on Behalf of Members of KCPA
and
Peter Gikonyo
1st Respondent
Tom Wanambisi
2nd Respondent
Josephine Ndikwe
3rd Respondent
Stella Thuo
4th Respondent
Joseph Mwaura
5th Respondent
Bonface Mwangangi
6th Respondent
Wifenzio Njeru
7th Respondent
Bonface Njoroge
8th Respondent
Jimmy Simbi Wamalwa
9th Respondent
Nicholas Ondimu
10th Respondent
Joseph Kimemia
11th Respondent
Registrar of Trade Unions
12th Respondent
Attorney General
13th Respondent
Ruling
1. The Claimants sued the Respondents on 22 September 2024 alleging that the Respondents had breached the Constitution of the Kenya Coffee Producers Association by failing to call an Annual General Meeting, and calling an unlawful Annual General Meeting where they were purportedly re-elected as officials.
2. Filed together with the Memorandum of Claim was a Notice of Motion seeking interim reliefs.
3. When the Motion was placed before the Court on 3 September 2024, the Court directed the Claimants to serve ahead of further directions on 18 September 2024. The Court did not sit on 18 September 2024 and the Cause was rescheduled to 15 October 2024.
4. On 15 October 2024, Mr Kanyoko advocate informed the Court that he had instructions to act for the Respondents. He also stated he had filed and served through email a Notice of Preliminary Objection.
5. However, the Claimants informed the Court that they had not been served with the Notice of Preliminary Objection.
6. Trusting the word of the Respondents’ advocate Mr Kanyoko, the Court directed the Respondents to serve the Notice of Preliminary Objection together with submissions physically on or before 25 October 2024.
7. The Court also directed the Claimants to file and serve their submissions on or before 8 November 2024 ahead of Ruling on 21 November 2024.
8. When the Court logged into the CTS system on 17 October 2024 to commence the drafting of the Ruling, the Notice of Preliminary Objection was not in the system (a check in the system this morning revealed the Preliminary Objection was not on the record).
9. It is clear that the Respondents had lied or misrepresented to the Court that they had filed and served the purported Notice of Preliminary Objection. Not even a Notice of Appointment of Advocate or Memorandum of Appearance had been filed.
10. The misrepresentation on the part of the Respondents’ advocate is a clear case of professional misconduct which the Court cannot countenance. The Court cannot speculate on the objective of the Respondents’ advocate in misrepresenting the status of the Court record.
11. The Court is, therefore, constrained issue an order to preserve the status of the action.
Orders 12. In light of the above, the Court orders:i.An order of temporary injunction is hereby issued restraining the Respondents by themselves, servants and or agents from carrying out any transactions for and on behalf of the Kenya Coffee Planters Association, a trade union or its accounts held at Cooperative Bank Wakulima House Branch pending further directions of this Court on 21 November 2024. ii.Mr Kanyoko Advocate to personally bear the costs wasted in the sum of Kshs 10,000/-.iii.The costs to be paid on or before 21 November 2024.
Delivered virtually, dated and signed in Nairobi on this 22ndday of October 2024. Radido Stephen, MCIArbJudgeAppearancesFor Claimant Musee Manyalo & AssociatesFor Respondent Advocate not formally on recordCourt Assistant Wangu