BACKGROUND
1. By his Notice of Motion application dated 31st August 2024 the Grievant (Mr. Onesmus Njimia Mureithi) seeks the following orders: -
a) That the application is certified urgent.
b) That the ruling dated 25th July 2024 by the Honourable Principal Court of Kenya in Nairobi in error overlooked my 27th July 2022 motion, approved by Honourable Court Mombasa is urgent on 27th July 2022 that the Motion has not been objected to date and I pray that it be allowed.
c) That during 20th July 2024, mention the Honourable Court overlooked the above Motion unreplied to and or record.
d) That based on the above scenarios this Honourable Court Labour is functus officio with pending motions four in number, of 2nd May 2017, 17th October 2017, 27th July 2022 and 7th June 2024 Ksh. 107,505,938 unopposed per court President 135/1997 by the Honourable David Maraga.
e) That the cost be provided for pending my matter over thirteen years from 4th December 2011 to date Ruling which time all my motions have never been replied with my four directors, Peter John Philip, my C.E.O. signature branch per law and deemed unopposed, unless the respondent has evidence to the contrary.
2. In the same Notice of Motion application, the Grievant/Applicant makes the following “HUMBLE PRAYER”
(i) That this Honourable Court see it wise and quash the functus officio allegation by the Respondent on 25th July 2024 mention as the Honorable Court cannot be functus officio with pending motions, four in number, per above in paragraph 4.
(ii) That the Judgment of 7th October 2016 was based on Honourable Justice Rika un appealed service pay awarded and as the Honourable Court overlooked my service pay approval email on record of 7th January 2005 and in Peter and Simon's outbox and inbox, Ksh. 3,680,000 unpaid to date with interest per Labour Institution Act 28(3) at Court rate, totals 9,788,800 plus 3,680,000 totals 13,468,800 which I pray be ordered paid within seven days less the amount paid by Honourable Onesmus Makau per Judgment dated 7th October 2016 based on mis-information by Simon on a compromise that never was.
(iii) The Judgment of 29th September 2019 was based on Simon’s allegations on commission arrears 2009 to 2017-part Ksh. 41,505,938 per approval email dated 18th November 2008.
(iv) That finally this Honourable Court order the Respondent to deposit my Kshs. 107,505,938 filed on 7th June 2024 but unopposed and Court stamped deemed accepted as prayed per interlocutory judgment rules.
(v) Damages be provided for delaying my benefits for over 19 years from 7th February 2005 to date.
(vi) Costs be provided or any other benefit and summon my fellow directors Peter and Simon to appear online in the coming hearing.
3. The application is premised on the affidavit sworn by the Grievant/Applicant on 31st August 2024.
4. The Respondent opposed the application on the grounds of opposition dated 21st November 2024.
5. Pursuant to the directions given by this Court, both the Grievant/Applicant and Counsel for the Respondent, have their written submission on record.
The Applicant’s application
6. The Applicant contends that at all material times, he was a director of the Respondent company who was unfairly retired by the Respondent’s CEO stationed in Singapore, via an email dated 5th February 2009.
7. That it has been, now 13 years of him chasing justice in the corridors of justice, for a remedy for the unfair retirement.
8. That following a Judgment of Justice Rika, herein, a decree dated 5th May 2015 for a sum of Kenya Shillings 13,468,800, ensued. The decree was never appealed against.
9. He further stated that by his application dated 17th October 2007, he approached the court for the summons to issue to his former directors, Peter John Philips and Simon Philips to appear in court and shed light on the commission amount of Ksh. 9,505,938 that Justice Onesmus Makau had in his ruling of 29th September 2017, upheld. The ruling overlooked the fact that Mr. Amwanyi had on 20th June 2016 confirmed that his commission was properly claimed and payable by Peter John Philips, the CEO. The CEO has to date never denied his entitlement to the commission and more specifically as was approved on 18th November 2008.
10. As at the time of the ruling by Justice Makau, the Respondent company was facing winding up proceedings under case No. 42 of 2015 and her accounts closed. The name had changed to CAMARCO SUPPLY BASE EPZ Limited. The company has now been sold to MAAST MARITIME UAE without his consent as a director.
11. Following the winding up and closure of the Respondent company, the award of KShs. 9,505,938 remained unpaid. The holding regarding his entitlement to the commission has never been challenged.
12. In its ruling dated 29th September the Court failed to consider the evidence by Mr. James Amwayi, in which he had confirmed that the Applicant was entitled to a commission and that the payment was approved by the CEO, through his email dated 18th November 2005, which changed his terms of remuneration from salary to commission, effective 1st January 2009. The total commission arrears from 2009 to 2017 amounted to kshs. 41,505.938.
13. He further asserted that his Notice of Motion applications dated, 27th May 2017, 27th July 222 and 7th June 2024 were not objected to as per law required. They should be deemed accepted as prayed.
Respondent's opposition
14. The Respondent resisted the application setting forth the principal grounds:-
(i) That this Honourable Court lacks jurisdiction to entertain further applications from the claimant having declared itself functus officio on 6th February 2018 with the same position being reiterated twice more on 20th February 2018 and 7th December 2022.
(ii) On 6th February 2018, this Court ordered that the ELRC Registry is not to accept any further applications in respect to this suit by virtue of the Court having declared itself functus officio, therefore making the present application (and any other) firmly in contempt of the Honourable Court’s orders.
(iii) That the present application is neither a review nor a stay of execution, application. A previous application for review dated 25th July 2017 filed by the Grievant was dismissed on 6th February 2018.
(iv) That the present application is incompetent being, in effect, a fresh claim for Kshs. 107,505,938/- introducing new issues either absent from, or irrelevant to, the main suit which is an egregious abuse of the Court process and judicial time as well as the Respondent's time and resources in defending said application.
(v) That the present application is also incompetent being directed at parties who are strangers to this suit, including Peter John Phillips and Simon Frazer Phillips.
(vi) That the grievant has previously filed a suit (similar to the present application) against the Respondent herein and several other parties (including the aforementioned strangers to this suit) seeking similar reliefs in MOMBASA HCC Suit No. E006 of 2020 which was struck out with costs in a Ruling dated 16th February 2024 by Lady Justice Wangari. Consequently, the present application is not only a blatant display of "forum shopping", but also res judicata.
(vii) That when the matter was placed before ELRC Principal Judge, Justice B. Ongaya, on 25th July 2024, Mr Ndege (the authorised representative of the Claimant), who happened to be present in court for a different matter, confirmed to the Court that the judgment delivered on 7th October 2016 was satisfied and that the Court is functus officio.
(viii) That in accordance with the Constitution of Kenya 2010, the court in its course to deliver justice shall be guided by article 159 (2) (a) which provides that justice shall be done to all, irrespective of status. The grievant has consistently weaponized his status as a senior citizen to undermine the Honourable Court's orders and manipulate the ELRC registry officers to continue to entertain his frivolous and contemptuous post-judgment applications in this suit, consequently breaching the aforementioned constitutional provision and court orders.
(ix) That the grievant has consistently filed applications whenever a new judge reports to the Mombasa ELRC station in the hope that he will be entertained despite the record clearly barring him from seeking the Honourable court's further indulgence in this suit.
(x) That the Grievant's conduct throughout has been entitled, belligerent, manipulative and in complete bad faith. The grievant is intent on having his way at any cost and his actions betray a woeful lack of regard for the law or the court process or justice for all parties involved. The Honourable Court must not allow itself to be misused in this manner.
(xi) That the Claimant/Grievant's present application is therefore incompetent; a waste of the court's time; and more importantly, an utter abuse of the Court process.
Analysis and determination
15. This court is seized with the question of considering whether the Grievant’s application should be granted considering the totality of the circumstances of this matter and how the application has been packaged and presented.
16. It is important to point out that pleadings, applications, petitions and any document presenting a matter to the court for interrogation and determination ought to be clear and unambiguous. I have considered and agonized over the Applicant’s application and, with due respect, find it most unintelligible. No favourable and sound order can be given by a court of law anchored on an application like the instant application.
17. Assuming I am wrong in concluding as I have hereinabove, still the Grievant’s application must fail for the following reasons: -
(i) Post Judgment herein, the Grievant/Applicant embarked on filing one application after another, some repetitively so. For good purpose on the 6th February 2018, this Court held and ordered: “I have heard submissions by the parties in this matter and have perused the Court record. It emerges that this matter has gone full circle in this Court, culminating with the Claimant’s application for review dated 25/7/2017. In dismissing the said application, my brother, Makau Judge, has explained that this Court is functus officio. In light of this, I decline to grant any further orders save to say that the funds held on account of the appeal already concluded be released to the Respondent. The Registry is directed not to accept any further applications on this file except with the leave of this court.” (Emphasized)
Violative of the order, the Applicant filed this application without leave of this Court. This matter is a good candidate for striking out.
(ii) In a way, through his instant application, the Applicant seeks that this Court review the order of 25th July 2024 by Justice Ongaya, specifically his reconfirmation that this Court is functus officio. For a party to successfully urge for an order of review, it must demonstrate the existence of certain specific factors. Thus, the application has been lodged timeously, a sufficient reason to justify the order, there is an error or mistake apparent on the record, and there has been a discovery of new evidence or material that wasn’t in the possession of the Applicant at the time of the order or decree sought to be reviewed. The Applicant did not express that his application is anchored on any or all of the stated grounds.
(iii) Like my colleagues have held previously in this matter, I hold that this Court is functus officio the matters raised by the Applicant in the instant application.
18. By reason of the foregoing premises, I find the Applicant’s application unmerited. It is hereby dismissed.
19. Orders according.
Dated, Signed and Delivered this 27th day of February 2025.