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ELRCStruck OutNot stated in judgment· [2016] KEELRC 111 (KLR)

Elias Mudaki Ngaywa v Principal Secretary Ministry of Tourism & another [2016] KEELRC 111 (KLR)

Employment and Labour Relations Court
20 December 2016
LNLINNET NDOLO
457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court struck out a worker's claim because the same dispute had already been decided in an earlier case between the same parties.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 9th August 2016 seeking to strike out the Claimant's claim on four grounds: that it was time barred under Section 90 of the Employment Act, 2007; that it was res judicata; that the Court was functus officio; and that the suit was incompetent, unmerited and an abuse of process. In response, the Claimant argued that the earlier suit concerned a determination of wrongful termination whereas the present claim sought reinstatement, and that the parties had engaged in correspondence over reinstatement, invoking Article 159(d) of the Constitution on substantive justice. Judge Linnet Ndolo framed the issue as whether the claim was properly before the Court, with the primary question being res judicata. Relying on Nicholas Njeru v Attorney General & 8 Others [2013] eKLR, the Court reaffirmed that res judicata is grounded on public policy and ensures finality in litigation, and applied Section 7 of the Civil Procedure Act. The Court found it undisputed that the Claimant had earlier filed CMCC No 2648 of 2006, which was fully heard and determined on 6th May 2011, and that the parties and subject matter in both suits were exactly the same, the only difference being the additional prayer for reinstatement. The claim was therefore held res judicata and barred from retrial. The grounds of limitation and functus officio were not considered, being superfluous. The claim was struck out with no order for costs.

Key legal issues

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01

Res judicata

Holding

The current claim is res judicata, the same parties and subject matter having been litigated and finally determined in CMCC No 2648 of 2006

Reasoning

The Court found it was not disputed that the Claimant had previously filed CMCC No 2648 of 2006, which was fully heard and judgment rendered on 6th May 2011. A perusal of the court documents revealed both the parties and the subject matter in the two suits were exactly the same; the only difference was the additional prayer for reinstatement. The doctrine of res judicata under Section 7 of the Civil Procedure Act, grounded on public policy and finality of litigation, therefore barred the present claim.

p. 2
02

Limitation and functus officio

Holding

Not determined - rendered superfluous by the res judicata finding

Reasoning

Having found the claim res judicata, the Court declined to consider the preliminary objection grounds based on Section 90 of the Employment Act (limitation) and functus officio, holding there was no reason to delve into issues that were now superfluous given the dispositive finding on res judicata.

p. 2

Legal principles established

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  • The doctrine of res judicata is grounded on public policy and assures finality to litigation
  • Section 7 of the Civil Procedure Act bars a court from trying a suit whose subject matter has been substantially litigated and finally determined by a competent court

Court orders

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  1. 1.The Claimant's claim is struck out
  2. 2.No order for costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; Article 159(d) of the Constitution invoked by the Claimant

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, "Elias Mudaki Ngaywa v Principal Secretary Ministry of Tourism & another [2016] KEELRC 111 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/111/eng@2016-12-20

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