Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2018] KECA 275 (KLR)

Rufus Kaimenyi Joseph v Kenya Ports Authority Sports Club Mbaraki [2018] KECA 275 (KLR)

Court of Appeal of Kenya
20 September 2018
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to revive an unfair termination appeal because the same request had already been dismissed - litigants must appeal refusals, not refile them.

What this practically means

#

Executive summary

#
This was an application under Rule 4 of the Court of Appeal Rules, heard by a single Judge of Appeal at Mombasa (M.K. Koome, JA), seeking extension of time to file an appeal against the decision of Makau J. delivered on 24th June, 2016, which had dismissed the applicant's claim for compensation for unfair termination but awarded him Kshs. 28,465/- being one month's salary in lieu of notice. The applicant, acting in person, explained the delay by his lack of funds to hire counsel. The respondent opposed through a replying affidavit and a preliminary objection, contending that a similar application had already been made before and dismissed by the trial court, rendering the present application res judicata, and that there had been an inordinate and unexplained delay. The Judge first considered whether the application was res judicata under Section 7 of the Civil Procedure Act and the principles in Uhuru Highway Development Limited v Central Bank of Kenya. Finding that the grounds in the earlier, dismissed application mirrored those now advanced, and that the applicant was not appealing the refusal but seeking to relitigate it afresh, the court held the application res judicata. Although sympathetic to the unrepresented applicant, the Judge held that sympathy was not a valid basis for exercising judicial discretion. The application was dismissed with no orders as to costs, given the applicant's in person status and the employment origin of the dispute.

Key legal issues

#
01

Whether the application for extension of time is res judicata

Holding

It is res judicata because a similar application on identical grounds was heard and determined by the trial court, and the applicant is not on appeal from that ruling but seeks to relitigate the matter afresh before this Court.

Reasoning

The court applied Section 7 of the Civil Procedure Act and the principles in Uhuru Highway Development Limited v Central Bank of Kenya, requiring a prior suit on the same matter between the same parties before a competent court, re-raised in a fresh suit. The grounds in the earlier application mirrored those now advanced. The proper course was an appeal from the refusal, not a fresh application invoking the original jurisdiction of the Court of Appeal.

p. 2
02

Whether the Court should nonetheless extend time out of sympathy for an unrepresented litigant

Holding

No. Sympathy for an unrepresented but determined litigant is not a valid reason for the exercise of judicial discretion where the application is res judicata.

Reasoning

Although the single Judge sympathised with the unrepresented applicant wishing to appeal the trial award, the discretion under Rule 4 must be exercised judiciously and cannot override the res judicata bar. The application was dismissed, with costs relented given the applicant's in person status and the employment origin of the dispute.

p. 2

Legal principles established

#
  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion on a single Judge to extend time, but that discretion must be exercised judiciously, having regard to the length of and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent, though the list is not exhaustive.
  • Where parties litigate over an issue before a competent court and it is determined, the same issue cannot be raised again before another court save on appeal; a fresh application identical to one already heard and determined is res judicata.

Court orders

#
  1. 1.The application dated 14th November, 2017 is dismissed
  2. 2.No orders as to costs - each party to bear their own costs, the applicant acting in person and the dispute arising from an employer/employee relationship

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure ActSection 7

Cases cited (5)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Appeal No. Nai 255 of 1997
  • Mwangi v Kenya Airways Ltd
    [2003] 486
  • William Koross (Legal personal representatives of Elijah C. A Korros) v Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR
  • E. T. V Attorney General & Another
    [2012] eKLR
  • Uhuru Highway Development Limited vs Central Bank of Kenya & 2 others
    [1996] eKLR
On appeal from
Employment and Labour Relations Court (trial court)
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rufus Kaimenyi Joseph v Kenya Ports Authority Sports Club Mbaraki [2018] KECA 275 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/275/eng@2018-09-20

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