[2024] KEELRC 13234 (KLR)

Mwaniki v Kuria & 4 others (Judicial Review Application E044 of 2023) [2024] KEELRC 13234 (KLR) (27 November 2024) (Judgment)

Neutral citation: [2024] KEELRC 13234 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Judicial Review Application E044 of 2023

B Ongaya, J

November 27, 2024

Between

Juma Hemed Mwaniki

Applicant

and

David Kuria

1st Respondent

Moses Kinya

2nd Respondent

Thika Water & Sewarage Company Limited

3rd Respondent

Water, Environment, Energy & Natural Resources – County Government of Kiambu

4th Respondent

State Law Office

5th Respondent

Judgment

1. The applicant filed the notice of motion dated 13. 05. 2024 through Mwenda Njagi & Company Advocates. The application was under sections 8 and 9 of the Law Reform Act, and, Order 53 Rule 1(2) of the Civil Procedure Rules, 2010. The applicant prayed for orders as follows:a.That an order of certiorari be granted to quash the decision of the 1st and 4th respondent made vide the letter dated 29. 12. 2022. b.That an order of mandamus do issue directed at the 1st and 4th respondent to reinstate the applicant as the Director, Member and Chairman of Audit Committee Board of Thika Water and Sewerage Company Ltd.c.That an order of Prohibition be granted to prohibit the withholding of sitting allowance for the period the applicant was ousted from the Audit Committee Board of Thika Water and Sewerage Company Limited.d.That upon hearing and determination of the application inter-partes the Honourable Court be pleased to issue an interim injunctive order restraining the respondents, their servants, agents, employees, associates or otherwise from recruiting persons to fill up the position of the suit office.

2. The application was said to be based on the statutory statement and affidavit verifying the facts relied on.

3. The 2nd and 3rd respondents filed the replying affidavit of Moses Kinya and through Otieno Okeyo & Company Advocates. It was stated as follows:a.The Court lacks jurisdiction because the claim there exist a mandatory dispute resolution clause by way of arbitration per the 3rd respondent’s Articles of Association per Article 101 thereof.b.Pleadings pursuant to grant of leave had not been served at all.c.The Court has already ruled that it has no jurisdiction and that ruling has not been varied on appeal or review.d.The suit had been terminated or dismissed and closed by the order of the Court and the application was legless and not sustainable.

4. The 1st respondent filed his replying affidavit sworn on 26. 07. 2024 and through Otieno Okeyo & Company Advocates. It was stated and urged that the motion be dismissed upon the same preliminary grounds as urged for the 2nd and 3rd respondent.

5. Final submissions were filed for the parties. The Court has considered the preliminary matters raised for the 1st to 4th respondents and returns that the application must fail upon the following findings:a.Exhibit MK3 on the replying affidavit for 2nd and 3rd respondents sworn by Moses Kinya is the ruling by the Court (Ndolo J) delivered on 19. 10. 2023 in Juma Hemedi Mwaniki –Versus- David Kuria and 4 Others ELRC Cause E149 of 2023. The Court found that there was no employment relationship between the claimant and any of the respondents and for that reason, the Court had no jurisdiction to entertain either the claim or the interlocutory application. Consequently, the claim and the notice of motion therein were struck out and each party ordered to bear own costs. It appears that the applicant seeks to revive the dispute as it was pleaded in that decided cause and by way of the instant application. The Court finds that as urged for the respondents, the instant application is an abuse of court process because the Court has already found that it lacks jurisdiction.b.As urged for the respondents there was no leave to file and prosecute the instant application for judicial review orders. The Court has considered the record and indeed on 27. 05. 2024 the respective counsel for the parties were present and after considering the submissions made by counsel, the Court ordered thus “1. The leave granted to file the notice of motion herein having lapsed, the applicant at liberty to commence a fresh legal process in view of the cause of action as may be appropriate. 2. No orders on costs.” The applicant appears to have filed the notice of motion dated 13. 05. 2024 without consideration that leave granted had lapsed. The application was obviously filed without leave and it amounted to an abuse of court process. The application will therefore collapse upon the preliminary points as urged for the 1st to 4th respondents.c.The Court has considered all circumstances of the case and costs must follow the event.

6In conclusion, the application dated 13. 05. 2024 is hereby dismissed with costs in favour of the 1st to 4th respondents and case file closed.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 27THNOVEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE