https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2001

Wamukota v Kenya Electricity Transmission Company Ltd (Petition E212 of 2026) [2026] KEELRC 2001 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2001 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E212 of 2026 JK Gakeri, J July 14, 2026 Between Eng Antony Tawayi Wamukota Petitioner and Kenya Electricity Transmission Company Limited Respondent Ruling 1.Before the court for determination is the Respondents Notice of Motion dated 1st July 2026 filed under Certificate of Urgency on 2nd July 2026 seeking orders that; 1.Spent. 2.Spent. 3.The order issued on 26th June 2026 be set aside, discharged and/or vacated forthwith. 4.The Notice of Motion Application dated 24th June 2026 and filed herein on the same date be struck out on the grounds of material non-disclosure. 5.The Petition be transferred to and consolidated with ELRC PET No. E033 of 2026 before the Employment and Labour Relations Court at Kisumu. 6.Costs of this application be in the cause. 2.The Motion is expressed under Rule 3, 17 and 23 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and Order 51 Rule I of the Civil Procedure Rules and is base on the grounds set out on its face and the Supporting Affidavit of the Florence Mitey, the Respondent’s Corporation Secretary who deposes that KISUMU ELRC PET No. E033 of 2026 Eugene Owino Ouma v The Board of Director, Kenya Electricity Transmission Co. Ltd (KETRACO) and others was filed on 16th June 2026 and the Petitioner was joined as an Interested Party and the core issue is the Interested Party’s continued tenure as General Manager, Directorate of Design and Construction at KETRACO and was based on allegations of corruption, procurement irregularities and governance failure in the Directorate of Design and Construction. 3.That on 16th June 2026 the Court issued conservatory orders restraining the Board of Directors of KETRACO from renewing, reinstating or extending the tenure of the petitioner as General Manager, Directorate of Design and Construction and the orders were served upon the Respondent on 17th June 2026 and the Interested Party had entered appearance in Kisumu ELRC No. E033 of 2026. 4.The affiant deposes that the Petitioner was aware of Kisumu ELRC Petition No. E033 of 2026 by the time he instituted the instant suit on 24th June 2026 and acknowledged having received the orders on 18th June, 2026. 5.That the Petitioner filed the instant Petition at a different registry while aware of the suit in Kisumu and did not disclose that existence of the case in Kisumu or the orders in force and both related to the same controversy and the reliefs sought are irreconcilable. 6.That a party seeking judicial relief is required to make a full and frank disclosure of all material facts as it is the cornerstone of the court’s equitable jurisdiction and failure to disclose leads to the setting aside of the orders obtained. 7.The affiant deposes that the non-disclosure was not inadvertent but deliberately calculated to mislead the court to grant the orders sought and the petitioner was forum shipping and the only appropriate remedy was setting aside the orders. Respondent’s Case 8.The Respondent had not filed a response by 13th July 2026. Applicant’s Submissions 9.As to whether the application dated 1st July 2026 is merited, reliance was placed on the sentiments of the court in Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd on the need to make full and frank disclosure in ex parte applications as were those in Andria (Vasso) 1984 14 B 477, for the proposition that failure to disclose could result in the discharge of any order made upon the ex parte application. 10.Alse cited was the decision in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others (1995) KECA 140 (KLR) on the effect of failure to disclose material facts, to submit that the petitioner sought ex parte orders without disclosing to the court that a court of concurrent jurisdiction had granted conservatory orders in another suit, and the petitioner had been listed as an Interested Party is that suit orders which stood in conflict with the orders sought and the orders subjected the Respondent/Applicant to competing commands from the courts. 11.Further reliance was placed on the decisions in Total Kenya Ltd v Permanent Secretary, Ministry of Energy & 14 others (2006) eKLR and Muchanga Investments v Safaris Unlimited (Africa) Ltd & 2 others (2009) KECA 453 (KLR) to urge that the petitioner used the judicial machinery improperly. 12.Counsel submitted that a litigant who moved between courts seeking favourable outcomes or invited courts of concurrent jurisdiction to issue competing commands engaged in forum shopping and such conduct amounted to abuse of court process. 13.The applicant’s case is grounded of non-disclosure of material facts by the Petitioner. 14.It is clear that neither the Notice of Motion, grounds thereof nor the Supporting Affidavit adverted to KISUMU ELRC PET No. E033 of 2026 or the orders granted by the court. 15.Puzzlingly, although the Petitioner’s annextures included the orders of the High Court in High Court in Petition No. 356 of 2026 issued by Hon. Justice David Mburu in Patrick Karani Ekirapa & Paul Ngweywo Kirui & others v KETRACO & Government Owened Enterprises Board Search and Selection Panel & 6 others dated 10th June 2026 the orders made in Kisumu ELRC PET No. E033 of 2026, were not annexed. 16.It is trite law that non-disclosure of relevant facts known to a party disentitles such party the relief sought. 17.In Ahmed Musa Ismael v Kumba Ntamorua & 4 others (2014) KECA 659 (KLR), the Court of Appeal held:"We find it most odd that the applicant failed to disclose the critical and relevant facts deposed to above in his application before us. That he did not in candour volunteer the information and that he did not challenge or controvert those averments when brought by the Respondents leads us to the conclusion that the applicant did not approach this court with the transparency and cadour that was required of him. Deliberate concealment of material facts can only be seen as an attempt to mislead the court and to steal a match on opposing parties. It also compromises an applicant’s chances of obtaining a favourable exercise of this or any other court’s discretion.As this court stated in David Kamau Gakuru v National Industrial Credit Bank Ltd Civil Appeal No. 54 of 2001 an injunction being and equitable remedy cannot be granted to a party who has demonstrated openly by his conduct that he is underserving of the equitable relief.” 18.See also Priscilla Ndubi & Zipporah Mutiga v Gerishon Gatobu Mbui Succession cause No. 720 of 2013 where the High Court stated;" …The general rule of law emphasizes utmost good faith (uberimae fidei) from parties who take out or are subject of the court proceedings.The said responsibility is part of justice itself. Accordingly non-disclosure of material facts undermines justice and introduces festering waters into the pure streams of justice. Such must immediately be subjected to serious reverse osmosis to purify the streams of justice if society is to be accordingly regulated by law…” 19.Similarly, in Tate Access Floor Boswell (1990) 3 ALLER 300 at 316 the court stated:"No rule is better established and far more important than the rule (the golden rule) that a plaintiff applying for ex parte relief must disclose to the court all matters relevant to the exercise of the courts discretion whether or not to grant relief before giving the defendant an opportunity to be heard.If that duty is not observed by the plaintiff the court will discharge the ex parte order and may mark its displeasure, refuse the plaintiff further inter partes relief even though the circumstances would otherwise justify the grant of such relief” 20.Finally, in Republic v Kenya Medical Training College & another ex parte Kenya Universities and Colleges Central Placement Services (2015) Eklr, Onguto J. state as follows;"Before summarizing the relevant legal principles and safeguards relevant to the instant issues, I must state and emphasize the high duty of condour fixed upon any applicant to court appearing ex parte must exhibit a high quality and degree of sincerely and honesty. He must be guileless. He must be frank. He must be open. He must keep nothing that touches on the matter away from the court. He must act in utmost good faith. If he does not so act he does so at his own risk” 21.In the instant application, it is discernible that the applicant was aware of KISUMU ELRC PET. No. E033 of 2026 and the order issued on 16th June 2026 when the instant suit was filed on 26th June 2026. 22.The Notice of Motion dated 24th June 2026 sought interim orders pre and post inter partes hearing and the court granted prayer No. 2 of the Notice of Motion that the Board of Directors of KETRACO should consider the Managing Director’s appraisal of the petitioner’s employment for the period 2021-2025 pursuant to a request dated 15th September 2025 for purposes of renewal of the Petitioner’s contract of employment. 23.The court issued the order in good faith on the basis of the facts pleaded by the petitioner and was unaware of the orders made by Hon Justice Nzioki Wa Makau in KISUMU ELRC PET. No. E033 of 2026 which are diametrically opposed to the orders of this court. 24.The confusion and embarrassment was occasioned by the petitioner. 25.In conclusion, it is the finding of the court that the Respondent’s Notice of Motion dated 1st July 2026 is merited and is granted in the following terms:a.The orders issued on 26th June 2026 be and is hereby vacated.b.Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH JULY, 2026.DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGE