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ELRCDismissedNot stated in the judgment as provided· [2016] KEELRC 1557 (KLR)

Francis James Khasira v Public Service Commission & 2 others [2016] KEELRC 1557 (KLR)

Employment and Labour Relations Court
14 March 2016
HWHellen Wasilwa
2,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court threw out a retired civil servant's 2014 petition because the same dispute had already been decided years earlier and was filed too late.

What this practically means

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Executive summary

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The 3rd Respondent raised a preliminary objection dated 27.04.2015 against a constitutional petition filed by a former Senior Accountant retired in the public interest on 26th July 1995 following disciplinary proceedings commenced in 1991. The objection had four limbs: that the Petition was res judicata, that the Court was functus officio, that the Petition was time barred, and that it was incompetent and an abuse of process. The Respondents submitted that the same parties and issues had been litigated in High Court Civil Suit No. 964 of 1996, decided by Justice Aganyanya on 28th November 2001, and in Miscellaneous Application No. 142 of 2010, dismissed for non-disclosure of material facts. They relied on Section 7 of the Civil Procedure Act and authorities including Nicholas Njeru, E.T. v Attorney General and Henderson v Henderson. The Respondents further argued the Petition, filed 19 years after the retirement decision, was time barred with no extension of time sought. The Petitioner countered that the Petition sought enforcement of rights under Articles 35(1), 41(1), 47(1), 48 and 50(1), that Article 22 imposes no time limit, that the prior proceedings were not decided on merit because vital documents were withheld, and invoked Basheshar, Evans v Bartlam and Taylor v Lawrence on the justice principle. Wasilwa J held the prior suit had been conclusively heard whether on merit or not, the proper avenue being review or appeal, and that refiling 15 years later was an abuse of process; the claim was in any event time barred, no leave to extend time having been sought. The Preliminary Objection was allowed and the entire claim dismissed with costs to the Respondents.

Key legal issues

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01

Res judicata

Holding

The Petition was res judicata as the same parties and issues had been conclusively determined in High Court Civil Suit No. 964 of 1996

Reasoning

The court found the Petitioner had filed High Court Civil Suit No. 964 of 1996, heard by Justice Aganyanya with judgment rendered on 28th November 2001. The same parties and issues featured in that suit, Miscellaneous Application No. 142 of 2010 and the present Petition. Refiling the same case 15 years later was held to be an abuse of process; the remedy lay in review or appeal.

p. 5
02

Limitation of time

Holding

The Petition, filed 19 years after the 1995 retirement decision, was time barred and no extension of time had been sought

Reasoning

The Petitioner was retired in 1995 but filed the Petition in 2014. The court noted no leave to extend time was sought, and that Sections 27 and 28 of the Limitations of Actions Act limiting extension apply to negligence, nuisance or breach of duty, not contracts. Employment matters are governed by the three-year limitation under Section 90 of the Employment Act, 2007.

p. 6
03

Abuse of court process / competency of the Petition

Holding

The entire claim was an abuse of the court process and the Preliminary Objection was allowed

Reasoning

Having found the claim res judicata and time barred, the court concluded the claim was an abuse of process. The Petitioner's argument that fundamental rights claims under Article 22 have no time limit and cannot be barred by res judicata did not persuade the court, which held the prior conclusive hearing foreclosed reopening.

p. 6
04

Functus officio

Holding

Not separately determined in the final analysis; the claim was dismissed on res judicata and limitation

Reasoning

The 3rd Respondent argued the Court was functus officio relying on Telkom Kenya Ltd v John Ochanda. The Petitioner countered that the Court was being approached afresh on rights violations. The court did not make a distinct finding on this limb, disposing of the objection on res judicata, limitation and abuse of process instead.

p. 3

Legal principles established

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  • A case conclusively heard by a Court of concurrent jurisdiction cannot be reopened; a party dissatisfied should pursue review or appeal.
  • Constitutional petitions are not exempt from limitation; a time-barred petition filed without leave cannot proceed.

Court orders

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  1. 1.The 3rd Respondent's Preliminary Objection dated 27.04.2015 is allowed
  2. 2.The entire claim/Petition is dismissed
  3. 3.Costs awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitations of Actions ActCap 22, Sections 27 and 28
  • Employment Act2007, Section 90
  • Public Service Commission RegulationsCap 185, Regulation 34
  • Constitution of KenyaArticles 22(1), 35(1), 41(1), 47(1), 48, 50(1)

Cases cited (9)

  • Nicholas Njeru Vs The Attorney General and 8 Others
    Civil Appeal No. 110 of 2011
  • James Katabazi and 21 Others vs The Attorney General of the Republic of Uganda
  • E.T. vs. Attorney General & Another
    (2012) eKLR
  • Henderson V Henderson
    (1843) 67 ER 313
  • Telkom Kenya Limited Vs John Ochanda and 996 Others
    (2014) eKLR
  • Michael Maina Nderitu Vs Kenya Power and Lighting Company Limited
    Industrial Cause No. 34 of 2010
  • Basheshar Noth Vs. The Commissioner of Income Tax, Delhi and Rajasthan
    (1959) Supp. 1. S.C.R. 528
  • Evans Vs Bartlam
    (1937) 2 All E.R. 646
  • Taylor and Another vs. Lawrence & Another
    (2002) ALL ER 353
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 22(1) of the Constitution (as invoked by the Petitioner); court acting in first instance on a preliminary objection

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, "Francis James Khasira v Public Service Commission & 2 others [2016] KEELRC 1557 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1557/eng@2016-03-04

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