[2023] KEELRC 3294 (KLR)
The court found that, in order to uphold the right to a fair hearing as enshrined in the Constitution, it was appropriate to admit the Respondents' replying affidavit filed out of time. However, to ensure procedural fairness and equality of arms, the Petitioners were granted leave to file and serve a further...
Source-derived case information.
- Citation
- [2023] KEELRC 3294 (KLR)
- Parties
- Applicant: Benard Otieno; Applicant: Malick M Shanguya; Applicant: Patrick Odero & 35 others; Respondent: Union Of Kenya Civil Servants; Respondent: Tom Mboya Odege; Respondent: Alisokor Muhamud Ishaq; Respondent: Abdulmalik A Abdalla
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E027 of 2023
- Procedural Posture
- Constitutional Petition / Interlocutory Ruling on Application to Enlarge Time and Interim Orders
- Outcome
- Application for enlargement of time allowed; interim orders granted.
- Judges
- S Radido
- Legal Topics
- Right to Fair Hearing, Enlargement of Time, Union Governance, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Otieno
Applicant
Malick M Shanguya
Applicant
Patrick Odero & 35 others
Applicant
Union Of Kenya Civil Servants
Respondent
Tom Mboya Odege
Respondent
Alisokor Muhamud Ishaq
Respondent
Abdulmalik A Abdalla
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Ruling on Application to Enlarge Time and Interim Orders
Legal Issues
- 1 Whether the Respondents should be granted leave to file their replying affidavit out of time.
- 2 Whether the Petitioners should be granted an opportunity to file a further affidavit in response.
- 3 Whether interim orders should issue to stay the Advisory Council meeting and National Delegates Conference pending further directions.
Ratio Decidendi
The court found that, in order to uphold the right to a fair hearing as enshrined in the Constitution, it was appropriate to admit the Respondents' replying affidavit filed out of time. However, to ensure procedural fairness and equality of arms, the Petitioners were granted leave to file and serve a further affidavit in response. The court also considered the urgency and potential prejudice regarding the scheduled Union meetings and, to preserve the subject matter of the dispute, issued a temporary order staying the holding of the Advisory Council meeting and National Delegates Conference pending further directions. The court emphasized that the power to enlarge time and grant interim...
Court Disposition
Application for enlargement of time allowed; interim orders granted.
Orders
- The Respondents' replying affidavit filed out of time is admitted.
- The Petitioners are granted leave to file and serve a further affidavit in response.
Full Case Text
Judgment text and source record
40 paragraphs
Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2023] KEELRC 3294 (KLR) (11 December 2023) (Ruling)
Neutral citation: [2023] KEELRC 3294 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition E027 of 2023
S Radido, J
December 11, 2023
IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 10, 41, 50, 232 AND 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTION 44, 47 OF THE LABOUR RELATIONS ACT, 2012 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 1 (a), 3 (h), 5 (d) 8 (b), (e), (g) (j), 20 (2) and 25 (2) OF THE UNION OF KENYA CIVIL SERVANTS CONSTITUTION
Between
Benard Otieno
1st Petitioner
Malick M Shanguya
2nd Petitioner
Patrick Odero & 35 others
3rd Petitioner
and
Union Of Kenya Civil Servants
1st Respondent
Tom Mboya Odege
2nd Respondent
Alisokor Muhamud Ishaq
3rd Respondent
Abdulmalik A Abdalla
4th Respondent
Ruling
1. The Court gave directions on the hearing and determination of this Petition on 9 October 2023.
2. The Respondents were directed to file and serve the responses on or before 13 October 2023 with judgment reserved to 6 December 2023.
3. The Respondents filed their affidavit on 27 November 2023 (outside the agreed timelines and of 13 October 2023) and on 27 November 2023, they filed a Motion dated 23 November 2023, seeking the enlargement of time to file and serve the replying affidavit out of time.
4. The Court directed the Respondents to serve the Motion and the Court took brief oral submissions on 4 December 2023.
5. After the submissions, the Court indicated that it would give the reasons for allowing or rejecting the admission of the affidavit as part of the judgment on 13 December 2023.
6. The primary grounds advanced by the Respondents for the late filing were that the National Treasurer had been out of the country attending a meeting in Geneva, there was need to consult with the Union’s auditors and that the input of the National Executive Board was required in the preparation of the response and it took time to call a meeting of the Board.
7. The Petitioners objected to the application and they argued that the National Executive Board normally had monthly meetings and that in fact it had met and scheduled a meeting of the Advisory Council and National Delegates Conference for 18 December 2023 and 19 December 2023, and suspended two branch officials as well.
8. The Petitioners further contended that the Respondents were out to buy time in order to scuttle the litigation and alter the Union’s Constitution.
9. The Constitution of Kenya underscores the fundamental right to a fair hearing. The Court is also clothed with the power to enlarge time for the filing of any process where merited.
10. In order to remain faithful to the normative value of the right to fair hearing, the Court admits the Respondents documents filed out of time.
11. However, to ensure equality of arms within the context of the right to a fair hearing, and in order not to shut out the Petitioners from an opportunity to reply to the assertions in the replying affidavit, the Court has found it necessary to grant the Petitioners a chance to file and serve a further affidavit.
12. This need led the Court to request the Deputy Registrar to notify the parties to appear in Court today.
13. And because part of the dispute herein relates to the inspection of records which the Petitioners may need to interrogate the financial statements scheduled to be presented during the National Delegates Conference on 19 December 2023, the Court orders:(i)That a temporary order staying the holding of the Advisory Council meeting and National Delegates Conference set for 18 December 2023 and 19 December 2023, respectively be and is hereby issued.
14. The Court will agree with the parties on the timelines for filing the further affidavit, if need be, after this Ruling.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 11TH DAY OF DECEMBER, 2023. Radido Stephen, MCIArbJudgeAppearancesFor Petitioners Otieno Aluoka & Co. AdvocatesFor Respondents Nyamweya Mamboleo AdvocatesCourt Assistant Chrispo Aura