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ELRCStruck OutNyeri ELRC JR No.E008 of 2024

Republic v Commissioner for Co-operatives & another; Gachungwa & 3 others (Exparte) (Suing on behalf of themselves and over Three Hundred and Ninety-five former workers of the defunct Tetu Coffee Farmers’ Co-operative Society Limited) (Judicial Review E008 of 2024) [2025] KEELRC 1457 (KLR)

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

The bottom line

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Kenya's Employment Court struck out a Kshs.27.7 million payment enforcement case because the same workers had already lost the identical claim in 2020 and never appealed.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri determines a Notice of Preliminary Objection dated 27th November 2024 in which the respondents contended that a fresh judicial review application by 399 former employees of the defunct Tetu Co-operative Society Limited was res judicata and an abuse of process. The applicants had obtained a decree of Kshs.27,718,055.45 against the respondents in a cause transferred from the High Court as Nyeri ELRC Cause No.102 of 2015, judgment having been delivered by Ongaya J on 24th November 2017. The decree was never fully satisfied, and the applicants earlier sought mandamus in Nyeri ELRC JR No.6 of 2019, which Nzioki Makau J dismissed on the merits on 25th February 2020 with no order as to costs. That decision was never appealed. Undeterred, the applicants obtained fresh leave to seek the same mandamus relief. Relying on section 7 of the Civil Procedure Act and the Supreme Court's exposition of res judicata in John Florence Maritime Services, the court held that the identical relief between the same parties had been heard and finally determined by a competent court, leaving the court functus officio; the proper remedy was an appeal, not a fresh application after four years. The court allowed the preliminary objection and struck out the entire suit, but declined costs in light of the applicants' unfortunate loss of both their employment and their employer. The ruling was delivered virtually via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Questions the Court framed

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

  1. 1.Whether the suit herein is res judicata

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes; the same parties sought the same mandamus orders which were heard and determined on the merits by Nzioki Makau J on 25th February 2020, and that decision was never appealed

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties litigating under the same title before a competent court that heard and finally decided it. The prior judicial review motion was decided on its merits and never challenged on appeal. Relitigating it four years later before the same court is an abuse of process; the remedy was an appeal.

p. 3

Legal principles established

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  • A matter decided on the merits between the same parties cannot be relitigated; the court becomes functus officio and the aggrieved party's remedy is appeal

Court orders

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  1. 1.The preliminary objection dated 27th November 2024 is allowed
  2. 2.The entire suit is struck out
  3. 3.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over judicial review applications (ELRC Procedure Rules); original jurisdiction over preliminary objection on res judicata

Relief refused

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Order of mandamus compelling the respondents to pay the decretal sum of Kshs.27,718,055.45 plus interest at 12% per annum

The suit is res judicata, the same relief having been sought and dismissed on the merits in Nyeri ELRC JR No.6 of 2019

p. 3

Costs

No costs, considering the unfortunate loss of both the employment and the employer (each party to bear their own costs in effect)

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.

Therefore, I allow the preliminary objection and strike out the entire suit but with no costs considering the unfortunate loss of both the employment and the employer.
p. 3Final orders - striking out suit
Any party aggrieved by the said decision ought to have moved to the Court of Appeal to challenge the same. Instead, the applicants went to slumber and woke up after four years to litigate over the same matter before the same court.
p. 3Res judicata and the remedy of appeal
The doctrine of res judicata in efiect allows a litigant only one bite of the cherry.
p. 3Doctrine of res judicata (quoting Supreme Court)

Issues in the judgment

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minor

The parties in the preliminary objection are not individually named in the ruling; only 'the applicants' and 'the respondents' are identified

minor

The judgment refers to the prior decision variously as by 'Nzioki Makau J' and 'Wa Makau J'

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, "Republic v Commissioner for Co-operatives & another; Gachungwa & 3 others (Exparte) (Suing on behalf of themselves and over Three Hundred and Ninety-five former workers of the defunct Tetu Coffee Farmers’ Co-operative Society Limited) (Judicial Review E008 of 2024) [2025] KEELRC 1457 (KLR)", Case Analysis (2025). Nyeri ELRC JR No.E008 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1457/eng@2025-05-15

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