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ELRCStruck OutCause No. 174 of 2015· [2016] KEELRC 859 (KLR)

Elijah Midogo Ochieng v Executive Director, the Trustees, Kenya Lake Conference S.D.A Church [2016] KEELRC 859 (KLR)

Employment and Labour Relations Court
26 May 2016
MOMAUREEN ONYANGO
943 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a worker's second lawsuit over the same dismissal, confirming you cannot re-litigate a case that has already been decided.

What this practically means

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Executive summary

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The Respondents, by notice of motion under sections 3, 3A, 7 and 8 of the Civil Procedure Act, sought striking out of the Claimant's suit on grounds of res judicata. The Claimant, Elijah Midigo Ochieng, had been one of the claimants in Kisumu Industrial Court Cause No. 26 of 2013 (formerly Nairobi Cause No. 1004 of 2012), in which Wasilwa J, by judgment delivered on 21st November 2014, awarded him one month's salary in lieu of notice and twelve months' salary as damages for unlawful termination, totalling Kshs. 742,700.40, a decretal sum the Respondent had settled in full. The present suit sought pay slips and salary arrears from March 2012, statutory deductions, pension, costs and interest. The court noted that both suits arose from the same termination of employment, that the same witnesses had recorded statements, and that the Claimant's averment that there were no previous proceedings between the parties was obviously incorrect. Applying section 7 of the Civil Procedure Act, the court held the suit res judicata, an abuse of process, and the Claimant estopped from relitigating the same cause of action. The application succeeded and the Claimant's suit was struck out with costs to the Applicant/Respondent; the order was expressly extended to Causes Nos. 175, 176, 177 and 178 of 2015 filed by his co-claimants. The ruling is dated 26th May 2016.

Key legal issues

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01

Res judicata

Holding

The Claimant's suit is res judicata because both the cause of action in Cause No. 26 of 2013 and the present suit relate to the termination of the Claimant's employment, the matter having been heard and finally decided by a competent court between the same parties.

Reasoning

The court compared the judgment of Wasilwa J in Cause No. 26 of 2013 with the present Memorandum of Claim. Both suits arose from the wrongful termination of the Claimant's employment. The Claimant had in fact been awarded notice pay and damages in the earlier cause, which the Respondent settled. The Claimant's averment that there had been no previous proceedings was demonstrably false. The issues raised in the present suit were raised or should have been raised in the earlier cause.

p. 3
02

Abuse of court process and estoppel

Holding

Filing a second suit on a cause of action already decided is an abuse of the process of the court and the Claimant is estopped from litigating the same cause of action again.

Reasoning

The court held that litigating over a matter already decided wastes judicial time. Because the issues in the present suit were raised or should have been raised in Cause No. 26 of 2013, the suit could not stand and the appropriate remedy was to strike it out with costs to the successful applicant.

p. 3

Legal principles established

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  • Section 7 of the Civil Procedure Act bars a court from trying a suit whose matter directly and substantially in issue has been heard and finally decided in a former suit between the same parties litigating under the same title

Court orders

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  1. 1.The Claimant's suit in Cause No. 174 of 2015 is struck out with costs to the Applicant/Respondent
  2. 2.The same order applies to file Nos. 175 of 2015, 176 of 2015, 177 of 2015 and 178 of 2015

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 7 and 8
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Sections 3, 3A, 7 and 8 of the Civil Procedure Act (application invoking res judicata)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elijah Midogo Ochieng v Executive Director, the Trustees, Kenya Lake Conference S.D.A Church [2016] KEELRC 859 (KLR)", Case Analysis (2016). Cause No. 174 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/859/eng@2016-05-26

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