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ELRCOtherMisc. Appl. No. 963 of 2007 (related claim; ruling on 2nd claimant's right to testify)· [2013] KEELRC 317 (KLR)

UNIVERSITIES ACADEMIC STAFF V MASENO UNIVERSITY [2013] KEELRC 317 (KLR)

Industrial Court of Kenya
17 May 2013
HWHellen Wasilwa
917 words in judgment
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The bottom line

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Winning a judicial review case does not block a later employment claim in Kenya — different remedies mean a res judicata objection fails.

What this practically means

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Executive summary

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This ruling of the Industrial Court (Hellen Wasilwa, J, dated 17 May 2013) addressed a preliminary contention by the respondent, Maseno University, that the 2nd claimant, Dr. Mary Goreti Kariaga, should not be allowed to testify because her interests had already been determined by J. Wendoh in Misc. Appl. No. 963 of 2007, in which judicial review orders of certiorari quashed the decisions of the University's Staff Disciplinary Committee and Council terminating her services. The respondent argued that hearing her would amount to sitting on appeal over that judgment. The court held that the earlier proceedings were a judicial review application which merely quashed the dismissal decisions; issues of reinstatement, payment of dues and compensation were never canvassed there, and J. Wendoh had expressly limited herself to the prayers sought. Relying on the Court of Appeal decisions in Staff Disciplinary Committee of Maseno University v Prof. Ochong' Okello and Erick D. J. Makokha v Lawrence Sagini, the court noted that employment contract disputes fall under private law and are not amenable to judicial review. The res judicata objection failed because the respondents could not establish that the two suits were substantially similar and over the same subject matter. The court accordingly allowed the 2nd claimant to proceed with her claim, with the respondents entitled to respond.

Key legal issues

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01

Whether the 2nd claimant's employment claim is res judicata given the prior judicial review judgment

Holding

Not res judicata; the prior judicial review proceedings quashed the dismissal but did not determine reinstatement, dues or compensation

Reasoning

The court distinguished the judicial review application decided by J. Wendoh from the present employment claim. The earlier case only quashed the decisions of the Disciplinary Committee and Council; issues of reinstatement, payment of dues and compensation were never canvassed. The court found the two suits distant from each other and the respondents failed to establish the requisite nexus between the two matters.

p. 2
02

Whether the Industrial Court may entertain the 2nd claimant's claim notwithstanding the prior orders

Holding

Yes; the 2nd claimant is allowed to proceed with her claim

Reasoning

Since the prior judicial review did not adjudicate the contractual employment remedies now sought, the Industrial Court was not sitting on appeal over J. Wendoh's judgment. The court held the res judicata objection failed and permitted the 2nd claimant to testify and proceed, leaving the respondents free to respond.

p. 2

Legal principles established

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  • Res judicata requires that the matter in the prior suit was substantially similar, over the same subject matter, before a court of competent jurisdiction
  • The High Court cannot grant orders of judicial review in matters falling under private law, including employment contract disputes

Court orders

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  1. 1.The 2nd claimant is allowed to proceed with her claim, with the respondents having a right to respond accordingly

Authorities

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Cases cited (2)

  • Staff Disciplinary Committee of Maseno University and 2 others v Prof. Ochong' Okello
    Civil Appl. No. 182 of 2004 (2012) KLR
  • Erick D. J. Makokha & Others v Lawrence Sagini & Others
    Civil Appeal No. 20 of 1994
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment claims (statutory basis not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "UNIVERSITIES ACADEMIC STAFF V MASENO UNIVERSITY [2013] KEELRC 317 (KLR)", Case Analysis (2013). Misc. Appl. No. 963 of 2007 (related claim; ruling on 2nd claimant's right to testify). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/317/eng@2013-05-17

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