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Court of AppealAllowedCourt of Appeal Appeal from ELRC Bungoma Cause No. 55 of 2018· [2024] KECA 1445 (KLR)

Rose Lunani Lukorito v Teachers Service Commission

Court of Appeal of Kenya
11 October 2024
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated a teacher's wrongful termination suit, ruling that a limitation issue already decided could not be raised again mid-trial.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Gatembu Kairu, Ochieng and Korir, JJ.A) allowed an appeal against a ruling of the Employment and Labour Relations Court at Bungoma (Nduma, J.) delivered on 1st February 2019 striking out the appellant's employment suit against the Teachers Service Commission on grounds of limitation. The appellant, a teacher, had sued for unlawful termination; TSC's preliminary objection that the claim was time-barred was heard and dismissed by Wasilwa, J. on 30th September 2014, holding that the claim was based on a mistake within Section 26 of the Limitation of Actions Act. When the suit later came up for hearing before Nduma, J., he raised limitation on his own motion after the appellant had begun her testimony, found no ruling by Wasilwa, J. on the court file, and re-determined the objection, striking out the entire suit. The Court of Appeal held that the earlier ruling existed and had conclusively determined the limitation issue; all four elements of res judicata as spelt out by the Supreme Court in John Florence Maritime Services were satisfied, so the matter was not open to re-litigation. The ELRC, being a court of record, could be assumed to hold its own rulings, and the trial judge proceeded on a mistake of fact. The Court set aside the ruling and orders of 1st February 2019, reinstated the suit for hearing afresh on merits before a judge other than Nduma, J., and awarded costs of the appeal to the appellant.

Key legal issues

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01

Res judicata as between interlocutory rulings in the same suit

Holding

The earlier ruling of Wasilwa, J. dismissing the preliminary objection on limitation was a final determination on merit between the same parties over the same subject matter; the trial judge erred in determining the issue afresh.

Reasoning

The Court adopted the Supreme Court's four elements of res judicata in John Florence Maritime Services: a former final judgment or order, rendered on merit by a court of competent jurisdiction, between identical parties, subject matter and cause of action. It found all elements satisfied because Wasilwa, J. had heard and dismissed the limitation objection in the same suit between the same parties. The record before the Court of Appeal confirmed the ruling existed, so Nduma, J. proceeded on a mistake of fact when he held no such ruling existed.

p. 3
02

Duty of the trial court when an earlier ruling is said to be missing from the record

Holding

The trial court should have noted the record and counsel's submissions pointing to the ruling; there was no indication that counsel were asked to supply it and failed, so the judge erred in re-determining the objection suo motto after the trial had commenced.

Reasoning

The judge raised limitation on his own motion after the appellant had commenced testimony, and invited submissions. Counsel for the claimant specifically submitted that Wasilwa, J. had heard and dismissed the objection on 30th September 2014. The ELRC, as a court of record, could be assumed to hold its own rulings. The court found no request had been made to counsel to supply the ruling, and speculated the file may have been misplaced in transit from Kisumu to Bungoma, but held the judge nonetheless proceeded on a mistake of fact.

p. 3

Legal principles established

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  • Where a preliminary objection on limitation has already been determined in an earlier ruling in the same suit, that issue is res judicata and may not be re-litigated or determined afresh by the same court.
  • A court being a court of record, counsel is entitled to assume that a previous ruling in the same suit is on record; a judge may not determine afresh an issue already adjudicated merely because the earlier ruling is not traced on the file.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and orders of the ELRC delivered on 1st February 2019 set aside
  3. 3.Appellant's suit reinstated to be heard afresh on merits before the ELRC before a judge other than M. N. Nduma, J.
  4. 4.Costs of the appeal to the appellant
On appeal from
Employment and Labour Relations Court at Bungoma
Cause No. 55 of 2018 (originally Industrial Court Cause No. 2491 of 2013, Nairobi; transferred to Kisumu Cause No. 9 of 2014)
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (Court of Appeal Rules, Rule 107(b) referenced on procedure)

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, "Rose Lunani Lukorito v Teachers Service Commission", Case Analysis (2024). Court of Appeal Appeal from ELRC Bungoma Cause No. 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1445/eng@2024-10-11

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