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ELRCDismissedMiscellaneous Application (ELRC) — application dated 24th July 2019 (number not stated in judgment)

Rabala v Judicial Service Commission & another (Miscellaneous Application 100 of 2019) [2020] KEELRC 957 (KLR)

Employment and Labour Relations Court
29 May 2020
2,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, Donald Rabala, applied by notice of motion dated 24th July 2019 for leave to file suit out of time against the respondents, seeking to pursue as an industrial dispute a claim he had earlier lodged in 2009 by way of Judicial Review Misc. Application No. 648 of 2009 against the Judicial Service Commission. That judicial review was dismissed by Odunga J on 13th May 2013, and his successive applications to extend time to appeal were dismissed by Musinga JA on 17th April 2015 and by a full bench of the Court of Appeal on 4th May 2018. He was dismissed from service on 13th May 2009. The 1st respondent opposed through grounds raising res judicata, statutory limitation under Section 90 of the Employment Act and Section 3 of the Public Authorities Limitations Act, lack of jurisdiction, and abuse of process; the 2nd respondent filed a preliminary objection on limitation and retrospectivity of the 2010 Constitution. Only the applicant filed submissions, relying on Beatrice Kahai Adagala, Fred Mudave Gogo, Mukisa Biscuit and Attorney General v Andrew Maina Githinji. The court framed two issues. First, the intended suit was res judicata under Section 7 of the Civil Procedure Act, the parties and subject matter having been identical and the former matter determined to finality, and differences in relief sought did not avoid the bar. Secondly, the court held it had no jurisdiction to extend limitation for employment contract claims under Section 90 of the Employment Act, the extension provisions of the Limitation of Actions Act not applying to contract claims per Divecon Ltd v Samani. The application was dismissed with no orders for costs.

Questions the Court framed

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

  1. 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. 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. 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

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01

Res judicata

Holding

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.

Reasoning

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.

p. 5
02

Jurisdiction to extend limitation

Holding

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.

Reasoning

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.

p. 5
03

Preliminary objection threshold

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 24th July 2019 is dismissed
  2. 2.No orders for costs — each party to bear their own costs ('dismissed with no orders for costs')

The bench

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

majority

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

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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.

p. 5

Costs

No orders for costs (dismissed with no orders for costs)

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.

The application is accordingly dismissed with no orders for costs.
p. 5Final orders / disposition
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.
p. 5Twin grounds of dismissal
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.
p. 5Scope 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
p. 5Section 90 Employment Act limitation period

Issues in the judgment

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minor

Supporting affidavit dated '26th July 2091' — apparent typographical error for 2019.

minor

The court cites 'Section of the Civil Procedure Act' without stating the section number when referring to res judicata (Section 7).

minor

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

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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, "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.