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ELRCDismissedIndustrial Cause (unspecified, 2015)· [2015] KEELRC 131 (KLR)

Humphrey Irungu Mugo v Kenya Kazi Services Limited [2015] KEELRC 131 (KLR)

Industrial Court of Kenya
25 November 2015
682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent filed preliminary objections seeking striking out of the claimant's suit as incompetent, res judicata under section 7 of the Civil Procedure Act, and an abuse of court process, on the basis that Industrial Cause No.228 of 2012 between the same parties had previously dealt with the same subject matter and was struck out with costs on 6th February 2013. The respondent relied on Court of Appeal and High Court authorities on non-disclosure of former suits. The claimant countered that the earlier cause was struck out on a technicality relating to the description of the respondent, not on merit, and that res judicata applies only where issues were directly and substantially determined in a former suit. M. Mbaru J held that a matter is res judicata only where it has been heard and determined on merit, citing Kibogy v Chemweno and Wanguhu v Kania, and applying GR Mandaria v Rattan Sign and the court's own decision in Wycliffe Bengi v Regnal Oil (K) Limited, which treats a struck-out matter as deleted from the records and incapable of barring new litigation. Because Cause No.228 of 2012 was struck out on a technicality rather than decided on merit, the claim was not res judicata. The preliminary objection filed on 17th June 2015 was dismissed with costs to the claimant, and the suit was to proceed.

Key legal issues

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01

Whether a suit struck out on a technicality constitutes res judicata against a subsequent suit

Holding

No - res judicata requires that the earlier matter was heard and determined on merit; a suit struck out cannot bar new litigation

Reasoning

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.

p. 2
02

Whether the suit was incompetent, frivolous, vexatious and an abuse of process

Holding

The preliminary objections on these grounds were dismissed; the suit was competent to proceed

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection raised by the respondent and filed on 17th June 2015 is dismissed with costs to the claimant

Authorities

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Legislation

  • Civil Procedure Act Cap 21 Laws of Kenyasection 7
  • Employment Actsection 47(1)

Cases cited (6)

  • Bahaduraju Ebrahim Shamji versus Ali Noor Jamal & Other
    Appeal No.2010 of 1997
  • Reve. Madara Evans Okanga Dondo versus Housing Finance Company of Kenya
    HCCC 262 of 2005 (Nakuru)
  • GR Mandaria versus Rattan Sign
    [1969] EA 118
  • Wycliffe Bengi versus Regnal Oil (K) Limited
    Cause No.1175 of 2010
  • Kibogy versus Chemweno
    [1981] KLR 35
  • Wanguhu Vs Kania
    [1987] KLR 51
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

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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, "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.