Lukorito v Teahers Service Commission (Civil Appeal E169 of 2019) [2024] KECA 1445 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a teacher's wrongful termination suit, ruling that a limitation issue already decided could not be raised again mid-trial.
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 learned Judge erred in striking out the suit based on limitation, the issue having been adjudicated upon in an earlier ruling in the same suit
Key legal issues
#Res judicata as between interlocutory rulings in the same suit
The earlier ruling of Wasilwa, J. dismissing the preliminary objection on limitation was a final determination on merit between the same parties over the same subject matter; the trial judge erred in determining the issue afresh.
The Court adopted the Supreme Court's four elements of res judicata in John Florence Maritime Services: a former final judgment or order, rendered on merit by a court of competent jurisdiction, between identical parties, subject matter and cause of action. It found all elements satisfied because Wasilwa, J. had heard and dismissed the limitation objection in the same suit between the same parties. The record before the Court of Appeal confirmed the ruling existed, so Nduma, J. proceeded on a mistake of fact when he held no such ruling existed.
Duty of the trial court when an earlier ruling is said to be missing from the record
The trial court should have noted the record and counsel's submissions pointing to the ruling; there was no indication that counsel were asked to supply it and failed, so the judge erred in re-determining the objection suo motto after the trial had commenced.
The judge raised limitation on his own motion after the appellant had commenced testimony, and invited submissions. Counsel for the claimant specifically submitted that Wasilwa, J. had heard and dismissed the objection on 30th September 2014. The ELRC, as a court of record, could be assumed to hold its own rulings. The court found no request had been made to counsel to supply the ruling, and speculated the file may have been misplaced in transit from Kisumu to Bungoma, but held the judge nonetheless proceeded on a mistake of fact.
Legal principles established
#- Where a preliminary objection on limitation has already been determined in an earlier ruling in the same suit, that issue is res judicata and may not be re-litigated or determined afresh by the same court.
- A court being a court of record, counsel is entitled to assume that a previous ruling in the same suit is on record; a judge may not determine afresh an issue already adjudicated merely because the earlier ruling is not traced on the file.
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders of the ELRC delivered on 1st February 2019 set aside
- 3.Appellant's suit reinstated to be heard afresh on merits before the ELRC before a judge other than M. N. Nduma, J.
- 4.Costs of the appeal to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Bungoma
- Cause No. 55 of 2018 (originally Industrial Court Cause No. 2491 of 2013, Nairobi; transferred to Kisumu Cause No. 9 of 2014)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (Court of Appeal Rules, Rule 107(b) referenced on procedure)
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.
In the result, the appeal succeeds and is hereby allowed. The Ruling and orders of the ELRC delivered on 1st February 2019 is set aside. The appellant’s suit is hereby reinstated and is to be heard afresh on merits before the ELRC before a judge other than M. N. Nduma, J.
We have no doubt that all those elements of res judicata as spelt out by the Supreme Court were met in this case and the matter of limitation was not open to be re-litigated.
In our view, ELRC being a court of record, counsel for the appellant was entitled to assume that the previous ruling of Wasilwa, J. would be on record.
The Judge proceeded on a mistake of fact, and went ahead to determine afresh, an issue that had already been determined.
Issues in the judgment
#The judgment records the hearing of the appeal on 23rd April 2024 but elsewhere refers to submissions dated 1st September 2023 and 23rd October 2023 and to submissions filed before the trial court on 24th September 2018 'pursuant to the order of the court issued on 24th September 2018'; also the impugned ruling is dated 1st February 2019 while the record states the court 'On 26th September 2019 ... reserved its ruling', an apparent year discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pukose v Okembo (Civil Appeal E075 of 2021) [2026] KECA 1199 (KLR)[2026] KECA 1199 (KLR)26 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Lukorito v Teahers Service Commission (Civil Appeal E169 of 2019) [2024] KECA 1445 (KLR)", Case Analysis (2024). Court of Appeal Appeal from ELRC Bungoma Cause No. 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1445/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.