Humphrey Irungu Mugo v Kenya Kazi Services Limited [2015] KEELRC 131 (KLR)
The bottom line
#Kenya's Industrial Court confirmed that a case struck out on a technicality does not bar an employee from filing the same claim again.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit struck out on a technicality constitutes res judicata against a subsequent suit
No - res judicata requires that the earlier matter was heard and determined on merit; a suit struck out cannot bar new litigation
The court relied on GR Mandaria v Rattan Sign and its own earlier decision in Wycliffe Bengi v Regnal Oil, holding that a struck-out matter is as if deleted from the records. Since Cause No.228 of 2012 was struck out for misdescription of the respondent rather than decided on merit, the requirements of res judicata under section 7 of the Civil Procedure Act were not met, and the preliminary objection failed.
Whether the suit was incompetent, frivolous, vexatious and an abuse of process
The preliminary objections on these grounds were dismissed; the suit was competent to proceed
The respondent argued that the claimant concealed the earlier suit and relied on authorities on non-disclosure. The court did not accept that the earlier struck-out suit rendered this claim res judicata or abusive. The entire preliminary objection, filed on 17th June 2015, was dismissed with costs to the claimant, allowing the claim to proceed to full hearing.
Legal principles established
#- A matter struck out (not determined on merit) cannot sustain a plea of res judicata against subsequent litigation
- A matter struck out is treated as deleted from the records and cannot bar new litigation
Court orders
#- 1.The preliminary objection raised by the respondent and filed on 17th June 2015 is dismissed with costs to the claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (implied); res judicata under section 7 of the Civil Procedure Act Cap 21 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey Irungu Mugo v Kenya Kazi Services Limited [2015] KEELRC 131 (KLR)", Case Analysis (2015). Industrial Cause (unspecified, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/131/eng@2015-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.