[2016] KEELRC 1865 (KLR)
The court found that the applicant/interested party had obtained ex parte orders through fraudulent non-disclosure, which resulted in the removal of the dominus litis from the proceedings. The court held that a third party cannot be granted ex parte orders to terminate a suit filed by others, and that the...
Source-derived case information.
- Citation
- [2016] KEELRC 1865 (KLR)
- Parties
- Applicant: Unionisable Employees of Kenya Airways; Respondent: Aviation and Airport Services Workers Union (K); Interested Party: Kenya Aviation Workers Union; Interested Party: Kenya Airways Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 27 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Proceedings, Exparte Orders, Fraudulent Non Disclosure, Dominus Litis, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unionisable Employees of Kenya Airways
Applicant
Aviation and Airport Services Workers Union (K)
Respondent
Kenya Aviation Workers Union
Interested Party
Kenya Airways Limited
Interested Party
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the interested party is entitled to a stay of proceedings pending appeal.
- 2 Whether ex parte orders obtained by a third party to terminate a suit are valid.
- 3 Whether the applicant/interested party has an arguable appeal.
Ratio Decidendi
The court found that the applicant/interested party had obtained ex parte orders through fraudulent non-disclosure, which resulted in the removal of the dominus litis from the proceedings. The court held that a third party cannot be granted ex parte orders to terminate a suit filed by others, and that the applicant/interested party did not have an arguable appeal. The court refused to exercise its discretion in favour of the applicant/interested party, emphasizing that equitable relief is not available to parties who do not come with clean hands. Consequently, the application for stay of proceedings was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs.
- Parties to obtain directions on the finalization of the petition on the date of this ruling.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
PETITION NO. 27 OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE INDUSTRIAL COURT AC
AND
IN THE MATTER OF THE LABOUR RELATIONS ACT
AND
IN THE MATTER OF UNIONISABLE EMPLOYEES OF KENYA AIRWAYS
AND
IN THE MATTEER OF GAZETTE NOTICE NO. 6135 DATED 2ND NOVEMBER 2012
BETWEEN
THE UNIONISABLE EMPLOYEES OF KENYA AIRWAYS
Being represented by STANLEY KIBET,
SULEIMAN AZIZ, ANGELA NJENGA…………………….…… PETITIONERS
VERSUS
AVIATION AND AIRPORT SERVICES
WORKERS UNION (K) ………………….……….......…….….. RESPONDENT
AND
KENYA AVIATION WORKERS UNION ………........ 1ST INTERESTED PARTY
KENYA AIRWAYS LIMITED ……………….........… 2ND INTERESTED PARTY
RULING
1. This court made a ruling on 15th August 2016, setting aside orders made exparte by Maureen J. on 5th December 2014 which orders had the effect of terminating the suit by an interested party exparte in the absence of the dominus litis, the petitioner and the respondent.
2. The court directed that the petition be concluded on a priority basis.
3. The applicant/interested party has sought to appeal the ruling and brought this application for stay of the proceedings herein pending the intended appeal.
4. This is a clear attempt to have the applicant delay the hearing of the petition in which it is only an interested party and a beneficiary of an order which the court has found to have been totally unmerited and obtained through what the court considers fraudulent non-disclosure of material facts to Maureen Onyango J.
5. The court does not consider that the applicant/interested party has an arguable appeal in this matter for the simple fact that a 3rd party cannot be granted leave exparte to ride on a suit filed by others and in the same vain obtain exparte orders which removes the dominus litis from the seat of justice. This is what happened in this case.
6. He who comes to equity must have clean hands. The court refuses to exercise its discretion in favour of the applicant/interested party.
7. The application lacks merit and is dismissed with costs. The parties to obtain directions on the finalization of the petition on the date of this ruling.
Dated and delivered at Nairobi this 25th day of November 2016
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE