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ELRCDismissedCause No 53 of 2014· [2015] KEELRC 717 (KLR)

Muhura v Teachers Service Commission (Cause 53 of 2014) [2015] KEELRC 717 (KLR)

Employment and Labour Relations Court
19 June 2015
2,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker who already lost a judicial review case over his dismissal could not re-sue, because one final case between the same parties settles the same dispute for good.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 16.04.2012 seeking a declaration that his dismissal was unlawful, general damages, accumulated unpaid salaries and allowances from 1st June 2000 to 13th August 2010, lump sum gratuity, costs and interest. The defendant filed a preliminary objection and a notice of motion seeking dismissal of the suit as res judicata under section 7 of the Civil Procedure Act, contending the dispute had been disposed of with finality in High Court Judicial Review Application No. 53 of 2010 at Nyeri, dismissed on 3.06.2011. The plaintiff argued that the judicial review proceedings were confined to procedural considerations and did not cover the present reliefs. The court reviewed the ruling of Sergon J in the judicial review application and found it considered both the procedural propriety and the merits of the termination. It held that under Articles 22(1) and 23(3) of the Constitution of Kenya, 2010, the former wall between judicial review proceedings and ordinary actions has collapsed, permitting composite remedies in one proceeding; it accordingly distinguished its earlier decision in Meshack Angeng'o Omondi v Eldoret Municipal Council and followed Professor Elijah Biama v University of Eldoret and Geofirey Otieno Ogola v Homa Bay Boys' High School. Because the earlier ruling determined the validity of and process leading to the dismissal, and the plaintiff did not appeal, the court found the present suit res judicata and dismissed it. Strikingly, considering the constitutional transition, the court ordered each party to bear their own costs of the suit and the application.

Key legal issues

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01

Whether the earlier judicial review ruling operated as res judicata

Holding

Yes. The High Court in Judicial Review Application No. 53 of 2010 considered both the procedure and merits of the plaintiff's dismissal, and the plaintiff did not appeal, so the present suit is res judicata.

Reasoning

Res judicata requires an earlier decision, a final judgment on the merits and the same parties. Under the 2010 Constitution, judicial review proceedings may consider substantive and compensatory issues alongside prerogative orders. Sergon J in the review application found the dismissal valid and that natural justice was accorded. The plaintiff did not appeal, so the dispute was conclusively determined and the present claim cannot proceed.

p. 7
02

Whether judicial review proceedings can embrace merits and compensatory remedies under the 2010 Constitution

Holding

Yes. The Constitution allows a litigant to seek composite remedies - declarations, compensation and judicial review orders - in the same pleading.

Reasoning

Articles 22(1) and 23(3) permit a litigant to claim compensation and judicial review orders in the same proceedings. The court held that the wall between judicial review and ordinary actions has been collapsed, and that litigants will not be faulted for choosing among the procedural options of the old dispensation while universal procedure has not yet been established.

p. 5

Legal principles established

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  • Under the Constitution of Kenya, 2010, a litigant may seek both judicial review orders and compensatory or other substantive remedies in the same proceedings; the former divide between judicial review and ordinary actions has been collapsed
  • A judicial review proceeding that considers both procedural propriety and the merits of a termination, resulting in a final decision, gives rise to res judicata in a subsequent suit between the same parties on the same dispute

Court orders

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  1. 1.The plaintiff's suit filed by the plaint dated 16.04.2012 is declared res judicata in view of High Court Judicial Review Application No. 53 of 2010 at Nyeri and the suit is dismissed
  2. 2.Each party shall bear own costs of the suit and the application

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsections 3, 3A
  • Civil Procedure Rules 2010Order 51 Rules 1 and 4
  • Civil Procedure RulesOrder 53
  • Public Authorities Limitation Act Cap. 39section 3
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013not specified

Cases cited (5)

  • Meshack Angeng’o Omondi v Eldoret Municipal Council And Another
    [2012]eKLR
  • Booker Onyango, Meshack Omondi Ageng’o and John Kwambai Rotich v Eldoret Water Sanitation Company Limited
    Civil Application No. Nairobi 247 of 2008
  • Professor Elijah Biama v University of Eldoret and 2 Others
    [2014]eKLR
  • Geofirey Otieno Ogola v Homa Bay Boys’ High School and 2 Others
    [2014]eKLR
  • Harrikson v Attorney General of Trinidad and Tobacco
    (1980) AC 265
Jurisdiction invoked
Original jurisdiction over employment dismissal claim; defendant's notice of motion under Order 51 Rules 1 and 4 of the Civil Procedure Rules 2010 and sections 3, 3A and 7 of the Civil Procedure Act

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, "Muhura v Teachers Service Commission (Cause 53 of 2014) [2015] KEELRC 717 (KLR)", Case Analysis (2015). Cause No 53 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/717/eng@2015-06-19

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