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ELRCDismissedIndustrial Dispute filed 24th May 2013 (interlocutory application dated 22/5/2015)· [2015] KEELRC 376 (KLR)

Robert Nyongesa v Sacco Societies Regulatory Authority & another [2015] KEELRC 376 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 October 2015
HWHellen Wasilwa
876 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a Kenya Ports Authority employee's bid for suspension salary and gratuity because he had already raised the same claims and lost.

What this practically means

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Executive summary

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This was a ruling on an interlocutory application dated 22/5/2015 filed by the Claimant, Robert Nyongesa, a former Manager of the ICT Department employed by the 2nd Respondent from May 2003 until 15th November 2013. He sought an interlocutory declaration that he was entitled to salary and benefits while on suspension, and an order directing the 2nd Respondent to pay withheld salary for the twelve months of suspension (Kshs.2,877,216/=) plus gratuity of Kshs.1,172,685/= that had been payable on expiry of a prior contract. He deponed that he was suspended on 28th November 2012 following a recommendation by the 1st Respondent, that no verdict on any disciplinary or criminal proceedings was ever communicated to him, and that his employment was terminated retrospectively with effect from 17th January 2013 by letter dated 15th November 2013. The Respondents, through a replying affidavit sworn by John Mwaka, the Ag. Chief Executive Officer of the 1st Respondent, argued the application was an abuse of the court process, noting that an earlier application dated 9/6/2014 seeking similar orders had been dismissed, with the court having indicated the claims for gratuity and withheld salaries should await full trial. Wasilwa J agreed, holding that the fresh application reproduced matters already deliberated upon and settled, amounting to res judicata and abuse of process. Without going into the merits, the court dismissed the application with costs to the Respondents.

Key legal issues

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01

Res judicata / abuse of process in respect of a repeated interlocutory application

Holding

The application dated 22/5/2015 sought orders similar to those in the dismissed application dated 9/6/2014 and was therefore res judicata and an abuse of the court process; it was dismissed with costs.

Reasoning

The court noted that the earlier application dated 9/6/2014 had sought similar orders - an interlocutory declaration of entitlement to salary and benefits during suspension and payment of withheld salary and gratuity - and had been dismissed, with the court having stated that the claim for gratuity and withheld salaries ought to await the full trial. Filing a fresh application reproducing the same orders amounted to re-litigating settled matters.

p. 3

Legal principles established

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  • Re-litigating matters already deliberated upon and settled by the Court is an abuse of the court process and such applications will be dismissed

Court orders

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  1. 1.The application dated 22/5/2015 is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Employment and labour relations dispute filed before the Industrial Court on 24th May 2013

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, "Robert Nyongesa v Sacco Societies Regulatory Authority & another [2015] KEELRC 376 (KLR)", Case Analysis (2015). Industrial Dispute filed 24th May 2013 (interlocutory application dated 22/5/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/376/eng@2015-10-19

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