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Court of AppealDismissedCivil Appeal No. 99 of 2017

Abud Abdalla Omar and 28 others v Kenya Ports Authority & another [2018] KECA 404 (KLR)

Court of Appeal
14 June 2018
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed courts can strike out duplicate lawsuits as an abuse of process when another case covers the same dispute.

What this practically means

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Executive summary

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Twenty-nine employees of the Kenya Ports Authority filed ELRC Case No. 636 of 2017 at Mombasa challenging allowances affected by a CBA, seeking declarations and conservatory orders against the Kenya Ports Authority and the Salaries and Remuneration Commission. Ex-parte conservatory orders were granted by a duty Judge in Nairobi during the recess. When the matter came before Rika, J, it emerged that an earlier suit, ELRC Cause No. 572 of 2017, had already been filed on behalf of 107 claimants challenging the same CBA, with 19 claimants overlapping and injunction prayers in that earlier file already denied. Counsel for the respondents objected to consolidation as an abuse of process. The learned Judge ruled that the subsequent suit was an abuse of the process of court, declined to consolidate, struck out Cause No. 636 of 2017, and directed that claimants not party to the earlier suit could apply to be joined within 14 days. The aggrieved claimants appealed instead. The Court of Appeal (Visram, Karanja and Koome, JJ.A) held that the appeal attacked an exercise of case-management discretion for which there was no evidence of non-judicial exercise, and that the decisive question was whether the striking out prejudiced the appellants. Finding that none were shut out of the justice system, the Court affirmed that duplicating suits over the same cause of action is an abuse of process, deprecated escalation of such matters on appeal, and dismissed the appeal with costs to the first respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in striking out ELRC Case No. 636 of 2017 suo motu instead of staying it under section 6 of the Civil Procedure Act
  2. 2.Whether the appellants were given a hearing before their suit was struck out
  3. 3.Whether the appellants suffered prejudice by the striking out of their suit
  4. 4.Whether the duplication of suits over the same cause of action amounted to an abuse of the process of the court

Key legal issues

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01

Abuse of process through duplicate litigation

Holding

Filing a second suit over the same cause of action, same respondents and overlapping claimants, after an earlier suit on the same matter, is an abuse of the process of court justifying striking out of the subsequent suit.

Reasoning

The two causes arose from the same CBA challenge, involved the same respondents and 19 common claimants. The Court held that duplicating litigation wastes judicial time and that a judge exercising case-management powers was entitled to clean up the confusion. The remedy of joining the omitted claimants in the earlier suit meant no party was shut out of the justice system, so striking out caused no prejudice.

p. 2
02

Appellate interference with case-management discretion

Holding

An appellate court will not disturb a judge's case-management discretion where there is no evidence it was exercised other than judiciously, and the appeal should not have been escalated in the first place.

Reasoning

The Court framed the appeal narrowly: whether the appellants were prejudiced by the striking out. Since the eleven claimants not in the earlier suit could still apply to be joined, and counsel could demonstrate no prejudice, the appeal was devoid of merit. The Court deprecated escalation of case-management decisions to the appellate court.

p. 2
03

Suo motu striking out and hearing

Holding

The contention that the judge erred in striking out the suit suo motu without a hearing did not avail the appellants, given absence of demonstrated prejudice and their available route into the earlier suit.

Reasoning

Counsel for the appellants argued that the judge ought to have stayed proceedings under section 6 of the Civil Procedure Act rather than strike out the suit, and that striking out suo motu denied the appellants a hearing. The Court found no prejudice flowing from the ruling, since all claimants with a grievance remained able to pursue it in ELRC Cause No. 572 of 2017.

p. 2

Legal principles established

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  • Instituting two suits over the same cause of action with duplicated litigants is an abuse of the process of the court, and a judge may properly strike out the subsequent suit during case management.
  • A first appellate court will not interfere with case-management discretion absent evidence that the judge failed to exercise discretion judiciously or judicially, and the decisive question is whether the striking-out left a party without remedy.

Court orders

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  1. 1.Appeal dismissed with costs to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court
E.L.R.C. Case No. 636 of 2017
Jurisdiction invoked
First appellate jurisdiction over appeals from the Employment and Labour Relations Court

Relief refused

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Reinstatement of ELRC Case No. 636 of 2017

The striking out caused the appellants no prejudice; the non-joined claimants were free to apply to be joined in ELRC Cause No. 572 of 2017

p. 2

Consolidation and transposition of the conservatory order issued in ELRC 636 of 2017 to ELRC Cause No. 572 of 2017

Consolidation would endorse the tainted duplication of suits

p. 2

Costs

Appeal dismissed with costs to the 1st respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The same is hereby dismissed with costs to the 1st respondent.
p. 2Final orders - dismissal of appeal
Instituting two suits over the same cause of action indeed and duplicating some of the litigants cannot be judicious use of court time. We reiterate that it is an abuse of the process of the court which must be frowned upon.
p. 2Abuse of process by duplicate litigation
there is no evidence whatsoever that the learned Judge failed to exercise his discretion judiciously or judicially
p. 2Non-interference with case-management discretion

Issues in the judgment

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minor

The judgment refers in argument to claimants in '571 of 2017' where the earlier suit appears to be 'ELRC Cause No. 572 of 2017'; the cause numbers are used inconsistently.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abud Abdalla Omar and 28 others v Kenya Ports Authority & another [2018] KECA 404 (KLR)", Case Analysis (2018). Civil Appeal No. 99 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/404/eng@2018-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.