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ELRCDismissedCause No. 1417 of 2013· [2014] KEELRC 572 (KLR)

James Ngugi v County Government Of Nairobi [2014] KEELRC 572 (KLR)

Industrial Court of Kenya
20 March 2014
766 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed an employment claim because the worker had already litigated the same dismissal and waited too long to file again.

What this practically means

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Executive summary

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The Claimant, summarily dismissed by the City Council of Nairobi in May 2005, had previously sued in the High Court in Civil Case No. 1073 of 2005 seeking reinstatement, back salaries, withdrawal of false allegations and redress for defamation. Judgment was delivered on 12th July 2007, declining reinstatement and other prayers save a declaration that the summary dismissal was wrongful and payment of half pay from February 2000 to June 2005. Six years later, on 4th September 2013, the Claimant filed the instant Claim at the Industrial Court against the County Government of Nairobi, the Council's successor, seeking ten prayers including declarations of unfair and unlawful termination, violation of constitutional guarantees of fair labour practices and fair administrative action, and general and constitutional damages. The Respondent raised a Notice of Preliminary Objection based on res judicata, supplemented by a ground that the Claim was time-barred under Section 90 of the Employment Act 2007. The Court, determining the matter on agreed written submissions, found the Claim both res judicata and statutorily barred, holding that the same parties or their successors had litigated the same subject matter and a final and binding decision was made by a competent court. The Court held that the 2010 Constitution could not apply retrospectively to a May 2005 dismissal, and that the law applicable was that in existence at the time of dismissal. The Preliminary Objection was upheld and the Claim dismissed with costs to the Respondent.

Key legal issues

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01

Res judicata

Holding

The Claim is res judicata as the same parties or their successors litigated the same subject matter and a final decision was made by a competent court

Reasoning

The Claimant's summary dismissal of May 2005 was fully litigated before the High Court, which delivered a final and binding judgment on 12th July 2007, declining reinstatement and other prayers save a declaration of wrongful dismissal and half pay. The fresh Claim before the Industrial Court is founded on the same cause of action against the successor of the same defendant, and is therefore barred.

p. 2
02

Limitation

Holding

The Claim is time-barred under Section 90 of the Employment Act 2007

Reasoning

The applicable law is that in existence in May 2005, being the repealed Employment Act Cap 226. Any residual claim had to be pursued under the procedural regime of the Labour Relations Act, and the fresh Claim filed in September 2013, six years after the High Court judgment, fell outside the statutory limitation period.

p. 2
03

Retrospectivity of constitutional rights

Holding

Constitutional guarantees under Article 41(1) and 47(1) could not be violated in May 2005 as they did not then exist

Reasoning

The Court held that constitutional provisions cannot be applied retrospectively to contractual disputes predating the 2010 Constitution. The guarantee of fair labour practices and fair administrative action came into force in 2010, and a party cannot manipulate the Constitution to circumvent clear statutory provisions and re-litigate a decided matter.

p. 2

Legal principles established

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  • The Constitution of Kenya 2010 does not apply retrospectively to pre-2010 employment dismissals
  • The law applicable to a dismissal is the law in existence at the time of the dismissal; incremental grant of remedies over the same cause of action across judicial platforms is not permitted
  • Constitutional guarantees must exist at the time of the alleged violation

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Claim is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1) and 47(1)
  • Employment ActSection 90
  • Employment Act (repealed)Cap 226
  • Labour Relations ActSection 84; No. 14 of 2007
  • Trade Disputes ActCap 234
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act; objection based on res judicata and Section 90 of the Employment Act 2007

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, "James Ngugi v County Government Of Nairobi [2014] KEELRC 572 (KLR)", Case Analysis (2014). Cause No. 1417 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/572/eng@2014-03-20

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