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ELRCDismissedELRC Case No. E228 of 2021 (Notice of Motion dated 28th October 2024)

Gichuki v Glaxosmithkline Pharmaceuticals Kenya (Civil Application E228 of 2021) [2025] KEELRC 347 (KLR)

Employment and Labour Relations Court
13 February 2025
3,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a repeat bid to force GSK to deposit Kshs. 150 million security, ruling that identical applications already rejected cannot be refiled without new evidence.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th October 2024, brought under Sections 1A, 3 and 3A of the Civil Procedure Act and Order 39 Rules 1 and 2 of the Civil Procedure Rules, 2010, Pauline Wambui Gichuki, the claimant in ELRC Case No. E228 of 2021, sought an order compelling GlaxoSmithKline Pharmaceuticals Kenya Limited to furnish security for costs of Kshs. 150,000,000 in a joint interest-earning account pending the hearing and determination of the main suit. She contended that the Respondent was winding up its Kenyan operations, had transferred business to Laborex Kenya Limited and appointed Imperial FZE as distributor, and held no substantial assets in Kenya, exposing her to unenforceable cost orders. She also sought summons to the Respondent's officers and expedited hearing of the suit. The Respondent opposed, arguing the application was res judicata and sub judice, being the fifth similar application, that security for costs under Order 26 is unavailable to a claimant, that the quantum was speculative, and that its business adjustments were those of a going concern with no winding-up petition filed. The court framed three issues: sufficiency of grounds under Order 39 Rules 1 and 2, sub judice, and prejudice. It found on the record that a similar application had previously been filed and dismissed and that no evidence showed any change in circumstances since 2023. For that reason alone the court held the application res judicata, dismissed it, and awarded costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Applicant has demonstrated sufficient grounds under Order 39 Rules 1 and 2 of the Civil Procedure Rules, 2010.
  2. 2.Whether the Application is sub judice.
  3. 3.Whether the Respondent will suffer prejudice if the Application is allowed.

Key legal issues

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01

Whether the Notice of Motion dated 28th October 2024 is res judicata

Holding

The court found the application res judicata because a similar application on the same grounds had been dismissed in 2023 and the Applicant demonstrated no change in circumstances since then.

Reasoning

The court traced the history of prior applications by the Applicant, including the application dated 23rd March 2023 in the same suit seeking security for costs on identical allegations of winding up, which was dismissed. The court held that re-litigating the same issues without evidence of changed circumstances offends the doctrine of res judicata embodied in Section 7 of the Civil Procedure Act, and dismissed the application on that basis alone.

p. 8
02

Whether the Applicant satisfied the conditions of Order 39 Rules 1 and 2 for security for costs

Holding

The court did not reach a substantive determination on the Order 39 conditions, instead disposing of the application on res judicata grounds; it noted the application related to attachment before judgment and the Applicant's contention that the Respondents were about to leave the jurisdiction.

Reasoning

The court set out the text of Order 39 rules 1 and 2 and framed the Applicant's contention as one of attachment before judgment - that the Respondents were about to abscond or leave the jurisdiction or cease operating in Kenya, obstructing execution of any decree. However, having found a prior identical application dismissed and no evidence of changed circumstances, the court dismissed the application without making findings on the Order 39 threshold itself.

p. 7

Legal principles established

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  • A fresh application seeking the same orders on the same grounds as a previously dismissed application, without evidence of changed circumstances, is res judicata and must be dismissed.

Court orders

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  1. 1.The application dated 28th October 2024 is dismissed as res judicata.
  2. 2.Costs in the cause.

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, 3 and 3A of the Civil Procedure Act; Order 39 Rules 1 and 2 of the Civil Procedure Rules, 2010

Relief refused

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Order compelling the Respondent to furnish security for costs of Kshs. 150,000,000 in a joint interest-earning account pending determination of ELRC E228 of 2021

A similar application seeking similar orders had been filed and dismissed in 2023 and no evidence was presented that circumstances had changed; the application is res judicata.

p. 8

Order summoning the Respondent's Managing Director, CEO or other agents to justify furnishing security

Fell with the main application dismissed as res judicata.

p. 8

Expedited hearing of the main suit within six months

Fell with the main application dismissed as res judicata.

p. 8

Costs

Costs in the cause.

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.

From the record before court, it is indeed true that a similar application has been filed by the applicant herein seeking similar orders which was dismissed. There is no evidence that the situation has since changed since 2023 when the last application was dismissed.
p. 8res judicata - repeated security for costs applications
For this reason alone, I find the application is res judicata and is dismissed accordingly. Costs in the cause.
p. 8final orders - dismissal and costs

Issues in the judgment

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minor

The judgment states the Respondent opposed 'the claimant's application dated 8th October 2024' whereas the application under determination is dated 28th October 2024.

minor

The judgment records the Respondent's argument that the earlier application was dismissed 'on 23/3/2023' while elsewhere the ruling dismissing it is dated 16th November 2023 (the application was dated 23rd March 2023).

minor

The court issues its decision as a 'ruling' text yet it disposes of the Notice of Motion; the Applicant is described variously as Applicant and claimant within the same judgment.

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, "Gichuki v Glaxosmithkline Pharmaceuticals Kenya (Civil Application E228 of 2021) [2025] KEELRC 347 (KLR)", Case Analysis (2025). ELRC Case No. E228 of 2021 (Notice of Motion dated 28th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/347/eng@2025-02-13

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