Heritage Insurance Company Limited v Angatia & 3 others (Civil Appeal 67 of 2019) [2024] KECA 1458 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a redundancy claim because the same workers' issue had already been decided, confirming lower courts must follow binding precedent.
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 judgment of this Court in Civil Appeal No 114 of 2016 was binding on the ELRC, notwithstanding the trial court's finding that it was decided per incuriam
- 2.Whether the respondents' current suit was res judicata in light of this Court's judgment in Civil Appeal No 114 of 2016
- 3.Whether the subsequent suit was an abuse of the court process
Key legal issues
#Whether the trial court was entitled to hold this Court's decision per incuriam and depart from it
No. The per incuriam doctrine has a strict test, and a lower court may not declare decisions of the Court of Appeal per incuriam merely because benches of the Court of Appeal have reached divergent conclusions.
The Court adopted the Supreme Court's guidance in Jasbir Singh Rai that per incuriam requires inattention to a specific applicable instrument, rule or authority. The trial court's only ground was that the Court of Appeal had departed from its own earlier redundancy decisions; but the Court of Appeal is not bound by its own decisions, and until divergent decisions are harmonised internally or by the Supreme Court, all of them bind lower courts, which may only choose between them with reasons.
Whether the respondents' suit was res judicata
Yes. The question of redundancy, procedural and substantive fairness, and sections 40 and 49 of the Employment Act had been determined with finality by this Court in Civil Appeal No 114 of 2016; adding new parties and an extra prayer did not defeat the doctrine.
Applying the conjunctive elements in section 7 of the Civil Procedure Act as set out in IEBC v Maina Kiai, the Court found the substance of the dispute - the legality of the redundancy - had been directly, substantially and finally determined between parties litigating over the same subject matter. Counsel for the respondents had admitted the two claims were similar; differing party names and an added discrimination prayer were cosmetic changes designed to evade the doctrine, which the law does not permit.
Whether the subsequent suit was an abuse of the court process
Yes; it automatically followed from the finding of res judicata that the claim was an abuse of process and ought to have been struck out.
Having concluded the suit was res judicata, the Court held it necessarily followed that maintaining the claim was abusive. The respondents' objection grounded on Articles 48 and 50 (access to justice and fair hearing) was rejected: access to justice operates subject to rules of engagement, of which res judicata and stare decisis are part, and their proper invocation cannot be characterised as a constitutional violation.
Appellate interference with discretionary rulings
An appellate court will not interfere with a trial court's exercise of discretion unless it was clearly wrong, but on the facts the ELRC's dismissal of the strike-out application was clearly erroneous.
The Court cited Mbogo v Shah on the classic standard for disturbing discretionary decisions and acknowledged it was dealing with an interlocutory appeal whose outcome would either end the claim or allow it to proceed. Despite that caution, it found the trial court had misdirected itself on both stare decisis and res judicata, so its discretion had been exercised on wrong principles and its ruling had to be set aside.
Legal principles established
#- A lower court cannot hold that divergent decisions of the Court of Appeal are per incuriam; all such decisions remain binding on the lower court, which may only follow one of them and give reasons.
- The test for per incuriam is strict: a decision is only per incuriam where it failed to consider some specific applicable instrument, rule or authority, not merely because it departs from prior decisions of the same court.
- The elements of res judicata under section 7 of the Civil Procedure Act are conjunctive and must all be satisfied.
- Parties cannot evade res judicata by adding new parties or new prayers to a subsequent suit raising issues already conclusively determined.
- Res judicata and stare decisis are rules of engagement in access to justice; their proper application is not a denial of access to justice under Articles 48 and 50.
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order of the ELRC dated 12th October 2018 is set aside
- 3.The appellant's application to strike out the respondents' claim is allowed as prayed, with the consequence that the respondents' claim is struck out
- 4.The respondents' Notice Affirming Decision of the Court is dismissed
- 5.The appellant shall have the costs in the High Court as well as in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC)
- Claim No 516 of 2016 (ruling of 12th October 2018)
- Jurisdiction invoked
- First appellate/interlocutory jurisdiction of the Court of Appeal over the ELRC ruling (Court of Appeal Rules; appeal under the Employment and Labour Relations Court Act framework)
Relief refused
#Respondents' Notice Affirming Decision of the trial court (rule 94, Court of Appeal Rules) seeking dismissal of the appeal
The Court held the suit was res judicata and an abuse of process; the notice was not even the subject of submissions and was of no consequence in view of the Court's decision
Costs
The appellant shall have the costs in the High Court as well as in this appeal.
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.
Having said all the foregoing, the order that commends itself to us is that this appeal is merited and is accordingly allowed. The ruling and order of the ELRC is set aside.
In lieu thereof, the application by the appellant is allowed as prayed, with the consequence that the respondents’ claim is struck out.
The appellant shall have the costs in the High Court as well as in this appeal.
Until the divergent decisions of this Court are harmonized by this Court by its own mechanism or by the Supreme Court, it is not in the place of the lower court, which is ordinarily bound by the decisions of this Court, to decide which one is per incuriam.
Parties cannot be allowed to litigate in installments or keep refashioning their cases with each passing day under the guise of a new cause of action, new parties and or even adding difierent prayers.
If they are engaged in proper cases as here, the afiected party cannot run to the Constitution, pleading denial of access to justice and or denial of a fair hearing.
Issues in the judgment
#The names of the parties (the employer appellant and the employee respondents) are never stated in the judgment; only 'the appellant' and 'the respondents' appear.
The judgment describes the appeal as one 'from the record' but it is an interlocutory appeal against a ruling; also the second judge's name is printed without an initial or given name ('ASIKE-MAKHANDIA').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Heritage Insurance Company Limited v Angatia & 3 others (Civil Appeal 67 of 2019) [2024] KECA 1458 (KLR)", Case Analysis (2024). Appeal against ruling in ELRC Claim No 516 of 2016 (memorandum of appeal dated 25th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1458/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.