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ELRCStruck OutCause No 2115 of 2015· [2016] KEELRC 188 (KLR)

Captain J.N. Wafubwa v The Defence Council [2016] KEELRC 188 (KLR)

Employment and Labour Relations Court
18 November 2016
LNLinnet Ndolo
920 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 is a ruling on a preliminary objection dated 7th June 2016 raised by the Respondent, the Defence Council, in a claim by Captain J.N. Wafubwa, a retired Kenya Air Force officer, apparently concerning his retirement benefits. The Respondent contended that the suit was res judicata, cataloguing at least six prior proceedings in which the claimant had litigated the assessment of his pension and terminal benefits: HCCC No 674 of 1993 (High Court ordered assessment at the rank of Major), Civil Appeal No 278 of 2003 (Court of Appeal reversed the High Court), HC Petition No 715 of 2006 (dismissed as an abuse of process), JR Misc. Civil Application No 368 of 2009 (dismissed, matter res judicata), HC JR Misc. Civil Application No 79 of 2013 (dismissed), and HCCC Misc. Application No JR 454 of 2014 (dismissed for failure to meet the judicial review threshold), plus a National Assembly petition found vexatious. Relying on section 7 of the Civil Procedure Act and Nicholas Njeru v Attorney General & 8 Others [2013] eKLR, the court held that res judicata and its twin, issue estoppel, require the same parties, same issues and a final determination by a competent court - all present here. The claimant's attempts to distinguish the prior cases were rejected as a mere splitting of hairs. The court held it lacked jurisdiction to retry the issues and struck out the claim with no order for costs on 18th November 2016.

Key legal issues

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01

Whether the suit is barred by res judicata and issue estoppel

Holding

The suit is res judicata; the claimant's claim is struck out with no order for costs and the court lacks jurisdiction to retry the issues

Reasoning

The claimant had litigated the same issues - his retirement and the assessment of his retirement benefits - in at least six prior cases, including HCCC No 674 of 1993, Civil Appeal No 278 of 2003, HC Petition No 715 of 2006, JR Misc. Civil Application Nos 368 of 2009 and 79 of 2013, and JR 454 of 2014, culminating in a National Assembly petition found vexatious. His attempts to distinguish the prior cases were dismissed as a mere splitting of hairs. Section 7 of the Civil Procedure Act bars trial of a suit whose subject matter has been substantially litigated and finally determined by a competent court.

p. 2

Legal principles established

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  • Res judicata is founded on public policy, aimed at finality to litigation and protecting individuals from being harassed twice with the same litigation
  • The ingredients of res judicata and issue estoppel are the same parties, same issues, and a final determination by a court of competent jurisdiction

Court orders

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  1. 1.The Claimant's claim is struck out
  2. 2.No order for costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Armed Forces ActNot specified

Cases cited (2)

  • Nicholas Njeru v Attorney General & 8 Others
    [2013] eKLR
  • Arnold & Others v National Westminister Bank PLC
    (1991) 2 A.C
Jurisdiction invoked
Section 7 of the Civil Procedure Act (doctrine of res judicata)

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, "Captain J.N. Wafubwa v The Defence Council [2016] KEELRC 188 (KLR)", Case Analysis (2016). Cause No 2115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/188/eng@2016-11-18

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