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ELRCDismissedNot stated in extract (Cause filed 12 September 2024, ELRC Embu)

Ndiko v Riopl Coffee & Restaurant Limited & another (Cause E764 of 2024) [2025] KEELRC 2670 (KLR)

Employment and Labour Relations Court
2 October 2025
668 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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Filing duplicate lawsuits wastes time and money: the court refused to strike out the case but found the claimant abused court process and paid the employer's costs.

What this practically means

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Executive summary

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The Respondents filed a Motion dated 28 January 2025 seeking a declaration that the Claimant's Cause was res judicata, having been raised in Nairobi ELRC Cause No. E873 of 2024 (Gladys Gathoni Ndiko v Riopl Coffee & Restaurant Ltd), and seeking striking out of the suit as an abuse of process, vexatious and duplicity, with costs. They contended the Cause was sub judice and cited authorities including Pkatai & Ar v Cloud Factory Kenya Ltd and Satya Bhama Gandhi v DPP. The Claimant replied that the instant Cause was filed on 12 September 2024, before the second Cause (filed 15 October 2024 without instructions); that no Cause had been determined on the merits; and that she had instructed her advocates on 27 May 2025 to withdraw the second Cause, a Notice to Withdraw having been filed. The court held that the Respondents had conflated the distinct doctrines of res judicata and sub judice; that no evidence showed the parallel Cause had been heard and determined by a competent court; and that the instant Cause predated the second. While the Cause of action was the same and the Claimant had not disclosed the instant Cause when instituting the second, she had since filed a Notice to Withdraw it. To do substantive justice, the court declined the orders in the Motion but found the Claimant had abused the court process by instituting different Causes on the same subject matter, and awarded the Respondents costs of the Motion. Delivered virtually, dated and signed in Embu on 2 October 2025 by Radido Stephen, Judge.

Questions the Court framed

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

  1. 1.Whether the Cause is res judicata having regard to ELRC Cause No. E873 of 2023 (Nairobi Cause No. E873 of 2024), Gladys Gathoni Ndiko v Riopl Coffee & Restaurant Ltd
  2. 2.Whether the Claimant's case should be struck out as an abuse of court process, vexatious and for duplicity

Key legal issues

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01

Whether res judicata was established

Holding

It was not. No evidence was placed before the court that the parallel Cause E873 of 2024 was heard and determined by a competent court; the parallel Cause was filed later (15 October 2024) than the instant Cause (12 September 2024) and had been withdrawn.

Reasoning

The court noted the Respondents conflated res judicata with sub judice, two distinct doctrines. The earlier-instituted Cause was the instant one; the parallel Cause was filed a month later and never determined on the merits. Without proof of a prior determination between the same parties, res judicata could not sustain the striking out.

p. 2
02

Whether the Claimant's suit was an abuse of court process warranting striking out

Holding

The court found abuse of process in instituting different Causes on the same subject matter, but declined to strike out, exercising discretion to do substantive justice since the duplicate Cause had been withdrawn.

Reasoning

The Cause of action in the second Cause was the same as the instant Cause, and the Claimant, aware of the instant Cause, did not disclose its existence when instructing an advocate to institute the second Cause. However, a Notice to Withdraw the second Cause had been filed, and the court held it should decline the striking-out orders in favour of substantive justice, instead awarding costs.

p. 2

Legal principles established

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  • Res judicata and sub judice are distinct doctrines to which different principles apply
  • Res judicata requires proof that a Cause between the same parties was heard and determined by a competent court
  • Instituting different Causes on the same subject matter constitutes an abuse of court process even where the duplicate suit is withdrawn

Court orders

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  1. 1.The Court declines to grant the orders in the Motion dated 28 January 2025
  2. 2.The Court finds that the Claimant has abused the court process by instituting different Causes on the same subject matter
  3. 3.The Respondents are awarded costs of the Motion

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 employment Causes (not expressly cited in the extract)

Relief refused

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Prayer that the matter be declared res judicata

No evidence that the parallel Cause was heard and determined by a competent court; the Respondents conflated res judicata with sub judice

Prayer that the Claimant's case be struck out for abuse of process, vexatiousness and duplicity

The Claimant had filed a Notice to Withdraw the second Cause; the court opted for substantive justice, though it found abuse

p. 2

Costs

The Respondents are awarded costs of the Motion dated 28 January 2025

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 Respondents coniated the doctrines of res judicata and sub judice. The two are not the same. They are distinct, and difierent principles apply.
Distinction between res judicata and sub judice
They have not placed before the Court any evidence that there is a parallel Cause No. E873 of 2024, between the same parties and that the Cause was heard and determined by a competent Court.
p. 2Elements of res judicata
Flowing from the above, and to do substantive justice, the Court declines to grant the orders in the Motion dated 28 January 2025 but finds that the Claimant has abused the court process by instituting difierent Causes on the same subject matter.
p. 2Final orders - refusal to strike out but finding of abuse
Because of the abuse, the Respondents are awarded costs of the Motion.
p. 2Costs of the Motion

Issues in the judgment

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minor

The Motion as reproduced is dated 28 January 2025 and stated to have been filed 25 May 2025, an unusual gap not explained in the judgment

minor

The parallel Cause is referred to as 'ELRC Cause No. E873 of 2023' in the Motion but elsewhere as 'Nairobi Cause No. E873 of 2024' and 'Cause No. E873 of 2024'

minor

The Cause number of the instant suit is not stated anywhere in the judgment extract

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, "Ndiko v Riopl Coffee & Restaurant Limited & another (Cause E764 of 2024) [2025] KEELRC 2670 (KLR)", Case Analysis (2025). Not stated in extract (Cause filed 12 September 2024, ELRC Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2670/eng@2025-10-02

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