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ELRCDismissedELRC Misc. JR No. 13 of 2016 (ex parte Judicial Review; transferred from HC Misc. Civil Cause JR 300 of 2016)

Republic v Kenya Revenue Authority ex parte Paul Makokha Okoiti [2016] KEELRC 50 (KLR)

Employment and Labour Relations Court
24 October 2016
4,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a former KRA employee's sixth lawsuit over his dismissal, ruling that repeatedly filing cases over the same dispute abuses the court process.

What this practically means

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Executive summary

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The ex parte Applicant, a former Kenya Revenue Authority employee dismissed on 3rd February 2009, sought leave for orders of mandamus compelling the Respondent to give particulars of errors relating to his salary and deductions. The matter was transferred from the High Court (JR 300 of 2016) to the Employment and Labour Relations Court. The Respondent filed preliminary objections arguing that the application was untenable, res judicata, sub judice, frivolous and an abuse of process, cataloguing six suits the Applicant had filed over the same cause of action before different judges, including a judgment in HC Misc. Applc. No. 351 of 2011 (Majanja J), judgments in JR No. 340 of 2013 (Korir J) and JR No. 117 of 2015 (Odunga J), an unprosecuted Industrial Court matter (Misc. No. 25 of 2013) and a pending appeal. The court framed two questions: whether the matter was res judicata and whether it was sub judice. It held that section 7 of the Civil Procedure Act does not apply to judicial review proceedings, following Commissioner of Lands v Hotel Kunste and Re: NHIF. However, applying Republic v NTSA ex parte Maina Mugo and Kenya Bus Services, it held the court retains inherent jurisdiction to terminate abusive proceedings. Finding six suits over the same termination, three judgments against the Applicant, an unprosecuted ELRC matter and an unprosecuted appeal, the court concluded the application was a gross abuse of process and frivolous. The objections were allowed, the ex parte orders were vacated, the application and proceedings were dismissed with costs to the Respondent, the Applicant was restrained from directly contacting KRA officers on his former employment, and the ruling was to be served on the Registrar of the High Court for appropriate action on any further filings over the same cause of action.

Questions the Court framed

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

  1. 1.Is the matter herein res judicata?
  2. 2.Is the matter herein sub judice?
  3. 3.Whether the Respondent's preliminary objections, including that the Applicant is a vexatious litigant abusing court process, should succeed

Key legal issues

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01

Whether res judicata applies to judicial review proceedings

Holding

Section 7 of the Civil Procedure Act does not apply to judicial review proceedings; judicial review is a special jurisdiction regulated by the Law Reform Act and Order 53 of the Civil Procedure Rules

Reasoning

The court cited section 7 and section 2 of the Civil Procedure Act and the authority in Commissioner of Lands v Hotel Kunste, holding that in issuing prerogative orders the High Court exercises special, not civil or criminal, jurisdiction, so a judicial review application is not a 'suit' under the Civil Procedure Act. It followed Re: NHIF that res judicata principles do not apply to judicial review.

p. 7
02

Whether the judicial review application was an abuse of the court process

Holding

Yes; the multiplicity of suits over the same employment cause of action, with judgments already entered against the Applicant and an unprosecuted matter pending, is a gross abuse of process warranting dismissal and vacation of ex parte orders

Reasoning

Although res judicata is not available in judicial review, the court retained inherent jurisdiction to terminate abusive proceedings. Six suits by the same applicant over the same termination of employment on 3rd February 2009, three with judgments and rulings against him, plus a pending but unprosecuted Industrial Court matter and an unprosecuted appeal, showed the application was frivolous and abusive.

p. 7
03

Whether the matter was sub judice

Holding

Filing different judicial review applications arising from the same cause of action while the court with jurisdiction is already seized of the matter is an abuse of court process; the correct procedure is via the ELRC Procedure Rules, especially Rule 7, in ELRC Misc. No. 25 of 2013

Reasoning

The court held that where a clear statutory procedure exists it must be strictly followed, citing The Speaker of the National Assembly v Karume. The admitted employment relationship and cause of action (termination on 3rd February 2009) belong before the Employment and Labour Relations Court in Misc. No. 25 of 2013, not in successive judicial review applications.

p. 7

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act does not apply to judicial review proceedings, but the court retains an inherent jurisdiction to terminate judicial review proceedings that amount to an abuse of process
  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Filing multiple applications arising from the same cause of action in different courts and fora is an abuse of the court process and will be dismissed

Court orders

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  1. 1.The Respondent's preliminary objections were allowed to the extent that the application herein and subsequent orders made are vacated as the same were obtained through abuse of court process
  2. 2.The Applicant is directed to cease writing, communicating and or addressing the Respondent and its officers directly on matters relating to his former employment that ceased on 3rd February 2009 unless the same relates to motions of the Court out of ELRC, Misc.25 of 2013
  3. 3.The Application and proceedings herein filed by the Applicant are dismissed
  4. 4.Costs awarded to the respondent
  5. 5.A copy of the ruling to be served upon the Registrar, High Court of Kenya for appropriate action with regard to any other matter filed by the Applicant over the same cause of action and outside ELRC, Misc.25 of 2013

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review under section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, transferred to the Employment and Labour Relations Court as an employment and labour relations matter

Relief refused

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Orders of mandamus directed at the Respondent to give particulars of errors with regard to salaries and deductions

The proceedings are a gross abuse of the court process; the issues fall to be addressed in ELRC Misc. No. 25 of 2013 and judicial review cannot be used to circumvent res judicata considerations

p. 8

Costs

Costs awarded to the 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.

Whereas res judicata may not be invoked in judicial review the Court retains an inherent jurisdiction to terminate proceedings where the same amount to an abuse of its process.
p. 4Inherent jurisdiction over abuse of process in judicial review
these suits I find to be in gross abuse of the Court process. Whatever motive the Applicant is engaged in in moving different courts and judges to this extent, this should stop forthwith.
p. 7Multiplicity of suits over the same cause of action
In conclusion therefore, the objections by the Respondent are allowed to the extent that the application herein and subsequent orders made are vacated as the same have been obtained through abuse of Court process.
p. 8Final orders - vacation of ex parte orders
Application and proceedings herein filed by the Applicant are hereby dismissed. Costs awarded to the respondent.
p. 8Final orders - dismissal and costs
A copy of the ruling shall be served upon the Registrar, High Court of Kenya for appropriate action with regard to any other matter filed by the Applicant over the same cause of action and outside ELRC, Misc.25 of 2013.
p. 8Final orders - referral to Registrar, High Court

Issues in the judgment

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minor

Internal inconsistency in the case number of the pending Industrial Court matter: the objections plead it as 'Industrial Misc. No.25 of 2013' while the list of six suits refers to 'Industrial Misc. No.25 of 2011'; elsewhere the ruling also refers to 'ELRC, Misc. No.25 of 2013'

minor

Internal inconsistency as to the number of decided matters: the objections assert 'there are three (3) similar judgements in the suits, and two (2) similar rulings' but paragraph 5 records 'There has been judgement and rulings in the first 3 suits' and the court's own conclusion lists four judgments including JR 300 of 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Kenya Revenue Authority ex parte Paul Makokha Okoiti [2016] KEELRC 50 (KLR)", Case Analysis (2016). ELRC Misc. JR No. 13 of 2016 (ex parte Judicial Review; transferred from HC Misc. Civil Cause JR 300 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/50/eng@2016-10-24

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