Mjawasi and others v Attorney General (Cause 43 of 2010) [2012] KEELRC 171 (KLR)
The bottom line
#Kenya's Industrial Court struck out a constitutional petition because the same pension claims had already been finally decided in a 1997 High Court case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are weighty issues justifying the petition being referred to the Chief Justice to constitute a 3-judge bench
- 2.Whether the petitioners' claims are res judicata having been determined in Nairobi High Court Civil Suit No. 1879 of 1997
Key legal issues
#Whether the petition is res judicata following the judgment in Nairobi High Court Civil Suit No. 1879 of 1997
The petition is res judicata; the issues of payment of terminal benefits were finally determined by Justice Lenaola and that decision was never appealed or reviewed
Justice Lenaola found as undisputed that the petitioners were entitled to pension, that the Government was obliged to pay, and that payment had been made to those who retired on the division date with provisions made for those in service. That decision was final, unappealed and unreviewed. Attempts to revisit it before the East African Court of Justice and its Appellate Division failed. Reframing the same claims as a constitutional petition cannot revive them.
Whether the petition should be referred to the Chief Justice for a three-judge bench
No; there are no new issues warranting such a bench, so nothing was referred
Although counsel submitted that weighty and grave issues (including application of international law and limitation) warranted a three-judge bench, the petitioners did not explain why those issues were not raised in the earlier suit. Having found the petition res judicata and bereft of new issues, the court concluded there was nothing to refer to the Chief Justice.
Legal principles established
#- Issues already finally determined by a court of competent jurisdiction cannot be re-litigated by clothing them in the form of a constitutional petition
- Parties must litigate their whole case at once; matters which might and ought to have been raised in a former suit are deemed to have been in issue in that suit
Court orders
#- 1.The petition is struck out
- 2.Nothing is referred to the Chief Justice for constitution of a bench
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction; petition transferred from the High Court on 5th October 2012
Relief refused
#All declaratory, payment and damages reliefs sought in the petition (prayers i–vii)
The claims were res judicata, having been finally determined in Nairobi High Court Civil Suit No. 1879 of 1997, and reliefs premised on non-payment failed because payment was found to have been made
Costs
No costs order made; no appearance for the Respondent and no costs order recorded
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I strike out the petition with the result that there is nothing to refer to the Chief Justice.
The petition which is premised on failure, neglect or refusal to pay pensions, interest and other benefits to the Petitioners has no legs to stand on and must crumble.
Clothing the same issues in the form of a petition cannot give the issues new life.
parties are not allowed to litigate in installments. They should plead their whole case at the first instance.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mjawasi and others v Attorney General (Cause 43 of 2010) [2012] KEELRC 171 (KLR)", Case Analysis (2012). Petition No. 384 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/171/eng@2012-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.