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ELRCDismissedCause No. 365 of 2013 (Ruling No. 2)· [2015] KEELRC 923 (KLR)

Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 923 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
5 June 2015
RSRadido Stephen
986 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (Radido Stephen J) arises from a judgment delivered on 6 February 2015 in which the Court found the suspension of the Claimant, Josphat Munke Ole Mpoe, by the Respondent, David Waiganjo Koinange, unlawful and awarded salary arrears and pay in lieu of leave totalling Kshs 5,400,000/- less sums owing. The Respondent's first attempt to stay execution was withdrawn; a second motion of 23 February 2015, seeking change of advocates, stay of execution, setting aside of the judgment and reopening of the Cause, was dismissed on 20 March 2015. Undeterred, the Respondent filed a third motion on 24 March 2015 repeating the stay, the setting aside and reopening prayers, and additionally seeking review of the 20 March 2015 ruling on the ground of discovery of new and important matter, namely an appointment letter dated 3 January 2011 setting wages at Kshs 20,000/- per month, exhibited with a Draft Response. The Court held that the duplicated prayers had already been decided on the merits and that pursuing them was an abuse of the Court's process. On the sole surviving prayer for review, the Court found that the appointment letter was signed by the Respondent himself, was within his knowledge from 2013, and was never produced despite directions of Ongaya J on 5 November 2013 to file further affidavits; the due diligence test for review was therefore not met. The motion was dismissed with costs to the Claimant on 5 June 2015.

Key legal issues

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01

Abuse of process through repetitive applications

Holding

The Court dismissed the prayers duplicating those already decided on 20 March 2015 as an abuse of the Court's process

Reasoning

Prayers 2, 4 and 5 of the 24 March 2015 motion were in substance identical to prayers dealt with in the 23 February 2015 motion which was dismissed on 20 March 2015. Because those prayers had been decided on the merits, re-litigating them was an abuse of process, and the Court dismissed them. The Respondent had also regurgitated the same grounds urged earlier.

p. 2
02

Review on ground of discovery of new and important matter

Holding

The appointment letter of 3 January 2011 did not qualify as a new and important matter; the review failed

Reasoning

The letter, exhibited with the Draft Response, set the wage at Kshs 20,000/- per month and was signed by the Respondent himself, so he was privy to its contents. He was aware from 2013 that the Claimant alleged remuneration of Kshs 100,000/-, yet never produced the letter despite directions to file further affidavits on 5 November 2013 and throughout the settlement attempts and numerous applications. Due diligence was not shown.

p. 2

Legal principles established

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  • Repeatedly seeking the same reliefs already decided on the merits constitutes an abuse of the Court's process
  • A party seeking review on the ground of discovery of new and important matter must show the matter was not within his knowledge and could not with due diligence have been discovered

Court orders

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  1. 1.The motion dated 24 March 2015 be dismissed with costs to the Claimant
Jurisdiction invoked
Review jurisdiction over its own judgment and ruling in Nakuru Industrial Cause No. 365 of 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, "Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 923 (KLR)", Case Analysis (2015). Cause No. 365 of 2013 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/923/eng@2015-06-05

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