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ELRCDismissedNot stated in judgment· [2016] KEELRC 1699 (KLR)

George Ochieng Ododa & 5 others v Kenya Railways Retirement Benefits Scheme [2016] KEELRC 1699 (KLR)

Employment and Labour Relations Court
19 February 2016
LNLINNET NDOLO
802 words in judgment
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The bottom line

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Kenya's Employment Court ruled a pension scheme could not dismiss former railway workers' housing claims as res judicata, protecting their right to a full hearing.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Linnet Ndolo J, 19th February 2016) disposed of the Respondent's notice of application dated 28th May 2015, supported by an affidavit of its Chief Executive Officer Simon Nyakundi, seeking dismissal of the Claimants' suit as res judicata or alternatively as abated for want of summons to enter appearance, and seeking to set aside injunction orders granted on 9th October 2009. The Respondent contended that the Claimants, former employees of Kenya Railways Corporation (KRC), had previously litigated substantially similar issues in Nakuru HCCC No 397 of 1998, where judgment was delivered on 7th May 2011 dismissing their claim, and that since KRC sponsors the Respondent, that determination extinguished the present claim. The 2nd Claimant, Simon M. Mahugu, in a replying affidavit denied that the issues were res judicata and characterized the application as a technicality aimed at subverting justice. Framing two issues - res judicata and the consequence of failure to take out summons - the court applied Section 7 of the Civil Procedure Act and the Court of Appeal's decision in Hon. Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR. It held that similarity of subject matter and the relationship between the Respondent and KRC do not, by themselves, render the issues res judicata, and that failure to take out summons is a procedural requirement incapable of invalidating an otherwise competent claim. The application was dismissed with costs in the cause.

Key legal issues

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01

Res judicata

Holding

The Claimants' suit is not res judicata notwithstanding the prior judgment in Nakuru HCCC No 397 of 1998

Reasoning

Section 7 of the Civil Procedure Act bars litigation of issues substantially determined between the same parties by a competent court. Although the subject matter of the present claim (occupation of houses formerly owned by KRC) overlaps with the earlier suit, and KRC sponsors the Respondent, similarity of subject matter and party relationship alone do not satisfy the ingredients of res judicata. The application was therefore dismissed.

p. 2
02

Abatement/failure to serve summons to enter appearance

Holding

Failure to take out and serve summons is not fatal to the Claimants' case

Reasoning

The Respondent argued the suit had abated because no summons to enter appearance were extracted and served. The court held this is a mere procedural requirement and cannot be used to invalidate an otherwise competent claim.

p. 2

Legal principles established

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  • Res judicata requires the same parties, same issues and a final determination by a court of competent jurisdiction
  • Similarity of subject matter and relationship between parties do not by themselves establish res judicata
  • Failure to take out summons to enter appearance is a procedural requirement that cannot invalidate an otherwise competent claim

Court orders

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  1. 1.The Respondent's application dated 28th May 2015 is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • Hon. Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "George Ochieng Ododa & 5 others v Kenya Railways Retirement Benefits Scheme [2016] KEELRC 1699 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1699/eng@2016-02-19

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