Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] KEELRC 428 (KLR)
The bottom line
#Kenya's Employment Court struck out a petition filed while two earlier cases on the same dispute were still pending, punishing forum shopping with costs.
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 suit herein is an abuse of Court process and secondly, whether the same should be struck out and whether the issues in this suit are sub judice and or res judicata
Key legal issues
#Sub judice
The suit was sub judice when filed because Petition No. 38 of 2020 and JR No. 9 of 2020, involving the same parties and subject matter, were pending and were only withdrawn after this suit was filed.
The court applied Sections 6 and 7 of the Civil Procedure Act. It found the three suits raised the same subject matter between the same parties. Both earlier suits were pending on 26th May 2020 when the instant suit was filed and when ex parte orders were obtained; withdrawals on 3rd and 19th June 2020 came after.
Res judicata
The plea of res judicata failed because the earlier suits were never finally determined.
Section 7 of the Civil Procedure Act requires that the matter in issue have been heard and finally decided by a competent court in a former suit. Since Petition No. 38 of 2020 and JR No. 9 of 2020 were withdrawn without final adjudication, res judicata was not established, though sub judice and abuse of process were.
Abuse of court process / forum shopping
The petition was an abuse of court process; the petitioner filed the instant suit after failing to obtain orders in two prior suits and withdrew them only after obtaining orders here.
Applying Muchanga Investments and related authority, the court held that instituting multiple suits on the same subject matter between the same parties, coupled with non-disclosure of the prior suits, amounted to forum shopping aimed at vexing the respondents and wasting judicial resources, justifying striking out the suit with costs.
Legal principles established
#- A suit filed while a previous suit between the same parties on the same subject matter is pending is sub judice; res judicata requires that the earlier suit have been finally determined.
- Filing successive suits on the same subject matter and withdrawing the earlier suits only after obtaining orders in the later one constitutes forum shopping and abuse of court process.
Court orders
#- 1.The suit (Petition No. 82 of 2020) is struck out for being sub judice at the time it was filed and for being an abuse of Court process
- 2.Costs of the suit awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12(1)
Relief refused
#All declaratory, prohibition, certiorari and mandamus reliefs sought in the Petition
The petition was struck out as sub judice and an abuse of court process
Costs
Suit struck out with costs to the Respondents (including the 1st Respondent on the preliminary objection)
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.
For the foregoing reasons, I strike out the suit herein with costs for being sub judice at the time it was filed and for being an abuse of Court process.
I find that the suit herein was at the time of institution both res judicata and an abuse of Court process.
From the foregoing it is evident that the issues in dispute in all the three suits relate to the same subject matter. This suit was filed before Petition No. 38 of 2020 and JR. No. 9 of 2020 were withdrawn and therefore was sub judice.
This is a classic case of forum shopping and waste of judicial time and resources. It is also a case of a litigant who set out to vex the Respondents.
It was however not res judicata as the issues in Petition No. 38 of 2020 and JR. No. 9 of 2020 were never finally adjudicated.
Issues in the judgment
#The judgment states the suit was 'res judicata' at paragraph 44 despite earlier finding that res judicata was not made out because the earlier suits were never finally adjudicated
The ex parte orders of 26th May 2020 are quoted as referring to an application dated 29th May 2020, an internal date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] KEELRC 428 (KLR)", Case Analysis (2021). Petition No. 82 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/428/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.