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ELRCDismissedCause Number 526 of 2012· [2018] KEELRC 453 (KLR)

Kenya Electrical Trades and Allied Workers’ Union [K] v Kenya Power and Lighting Company Limited [2018] KEELRC 453 (KLR)

Employment and Labour Relations Court (formerly Industrial Court)
7 December 2018
JRJames Rika
1,405 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 dismissed a union's case because it duplicated an earlier suit and failed to identify the employees seeking compensation.

What this practically means

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Executive summary

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The Claimant Union filed its Statement of Claim on 28 March 2012 against the Respondent Company, alleging breach of clauses 1, 9, 10, 25 and Appendix C of the registered Collective Bargaining Agreement, failure to remit union dues, breach of the Agreement of 2 November 2011, and unlawful non-renewal/termination of 2 months' fixed-term employment contracts. It sought declaratory orders, injunctions against termination, refunds of union dues, implementation of check-off orders, and damages. The Respondent belatedly raised a defence of res judicata, contending the Claim duplicated Cause Number 1788 of 2011 between the same parties, in which judgment was delivered on 20 April 2017. Applying the test in Paul Seki Nzau v Laico Regency Hotel, the Court found the parties in both Causes identical (roles reversed), and the issues same or similar - both focused on short-term contracts, particularly 2 months' contracts, and the same 2011/2012 CBA. The Court noted the Claimant should have sought consolidation rather than filing a parallel Cause while the earlier one was pending. Independently of res judicata, the Court found the Claim unsustainable: the identity and number of affected Employees were unclear (pleadings mentioned 4,100; evidence mentioned 2,076), and no blanket compensation order could be made for unnamed Employees. The Court accordingly dismissed the Claim with no order as to costs and directed the file be returned to the E&LRC Registry at Nairobi. Dated and delivered at Mombasa on 7 December 2018 by James Rika, Judge.

Key legal issues

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01

Whether the Claim is res judicata

Holding

The Claim is res judicata as the same or similar issues were or could have been raised in Cause Number 1788 of 2011, involving the same parties and the same CBA and nucleus of operative facts

Reasoning

The parties in both Causes were the same (roles reversed). The issues in both Causes focused on short-term contracts, particularly 2 months' contracts, and the same 2011/2012 CBA. The earlier Cause was still pending when the current Cause was filed, and the Claimant could have brought these issues under the earlier Cause to avoid duplication and wastage of judicial resources. A final determination had been made on short-term contracts and associational rights.

p. 3
02

Whether the Claim is otherwise sustainable

Holding

Even barring res judicata, the Claim fails for lack of clarity on the identity and number of Employees on whose behalf compensation is sought

Reasoning

The Claimant's pleadings referred to 4,100 Employees while its witness referred to 2,076. The number and identity of Employees for whom compensation was sought remained unclear. The Court held it could not issue a blanket compensation order for unnamed Employees, rendering the Claim unsustainable.

p. 3

Legal principles established

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  • For a res judicata objection to succeed, the objector must show prior litigation involving identical claims or claims that could have been raised, identity or privity of parties, and a decision on the merits
  • Res judicata bars not only re-litigation of claims but also claims which could have been litigated in the first suit
  • A court cannot make a blanket order of compensation for unnamed employees

Court orders

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  1. 1.The Claim is dismissed
  2. 2.No order on the costs
  3. 3.This file shall forthwith be returned to the Registry at the E&LRC Nairobi

Authorities

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Cases cited (1)

  • Paul Seki Nzau & 27 Ors. v Laico Regency Hotel
    [2014] e-KLR
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Labour Relations Act (dispute over collective bargaining agreement and union dues); not expressly cited in the judgment

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, "Kenya Electrical Trades and Allied Workers’ Union [K] v Kenya Power and Lighting Company Limited [2018] KEELRC 453 (KLR)", Case Analysis (2018). Cause Number 526 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/453/eng@2018-12-07

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