Rabala v Judicial Service Commission & another (Miscellaneous Application 100 of 2019) [2020] KEELRC 957 (KLR)
The bottom line
#Kenya's Employment Court ruled you cannot revive a case already decided years ago, nor extend the three-year deadline for suing over a job dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended suit is res judicata having been the subject of Judicial Review Misc. Application No. 648 of 2009, which was heard and determined to finality
- 2.Whether this court has jurisdiction to grant leave to file suit out of time, i.e. to extend the limitation period in respect of a claim arising from a contract of service
- 3.Whether the 2nd respondent's preliminary objection meets the threshold in Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
Key legal issues
#Res judicata
The intended industrial dispute suit is barred by res judicata because the same subject matter between the same parties was heard and finally determined by the High Court in Judicial Review Misc. Application No. 648 of 2009.
Applying Section 7 of the Civil Procedure Act and the five conjunctive elements in Independent Electoral & Boundaries Commission v Maina Kiai, the court found that the parties in the judicial review were the same as in the intended suit, the subject matter was identical, and the matter was dealt with to finality. Differences in the relief sought do not escape the doctrine.
Jurisdiction to extend limitation
The court has no jurisdiction to grant extension of the limitation period for employment claims; Section 90 of the Employment Act fixes a three-year limitation period and the extension provisions of the Limitation of Actions Act do not apply to actions based on contract.
Section 90 of the Employment Act bars claims not commenced within three years of the act complained of. The extension provisions under the Limitation of Actions Act relate only to disability, fraud, mistake, ignorance of material facts, acknowledgment or part payment. Following Divecon Ltd v Samani, no court may entertain a time-barred contractual action or extend such time.
Preliminary objection threshold
The applicant argued, citing Mukisa Biscuit and Attorney General v Andrew Maina Githinji, that the 2nd respondent's preliminary objection did not meet the pure-point-of-law threshold; the court resolved the matter on the two substantive grounds rather than on the objection.
The applicant submitted the objection failed the three Mukisa Biscuit ingredients as refined in Githinji. The court did not determine the objection directly, instead dismissing the application on res judicata and lack of jurisdiction to extend limitation, making the threshold question immaterial to the outcome.
Legal principles established
#- The Employment and Labour Relations Court has no jurisdiction to extend the limitation period for claims arising out of contracts of service under Section 90 of the Employment Act.
- A matter whose subject matter was directly and substantially in issue in former proceedings between the same parties, litigating under the same title, and heard and finally determined by a competent court, is res judicata even if the relief now sought differs.
Court orders
#- 1.The application dated 24th July 2019 is dismissed
- 2.No orders for costs — each party to bear their own costs ('dismissed with no orders for costs')
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A and 31 of the Civil Procedure Act, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Articles 41, 47 and 48 of the Constitution; Section 12(3)(viii) of the Employment and Labour Relations Act invoked by the applicant
Relief refused
#Leave to file suit out of time (draft Memorandum of Claim deemed filed)
The intended suit is res judicata having been litigated and determined in Judicial Review Misc. Application No. 648 of 2009, and the court has no jurisdiction to extend the limitation period for employment claims under Section 90 of the Employment Act.
Costs
No orders for costs (dismissed with no orders for costs)
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.
The application is accordingly dismissed with no orders for costs.
There are thus two reasons why the application here must fail. The first is that it is res judicata having been the subject of Misc. Application No. 648 of 2009 and secondly, because this court has no jurisdiction to grant the orders sought being extension of limitation period in employment contracts.
The fact that the prayers he sought in the judicial application are not exactly what he seeks in the intended suit does not preclude the suit from the doctrine of res judicata.
Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained
Issues in the judgment
#Supporting affidavit dated '26th July 2091' — apparent typographical error for 2019.
The court cites 'Section of the Civil Procedure Act' without stating the section number when referring to res judicata (Section 7).
The 1st and 2nd respondents are referred to throughout without their full names being stated in the judgment; their identity is inferred only from the judicial review case name, 'Republic v The Judicial Service Commission & Anor. (ex-parte Donald Rabala)'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rabala v Judicial Service Commission & another (Miscellaneous Application 100 of 2019) [2020] KEELRC 957 (KLR)", Case Analysis (2020). Miscellaneous Application (ELRC) — application dated 24th July 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/957/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.