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ELRCDismissedCause No. 1353 of 2014· [2018] KEELRC 651 (KLR)

Ann Gichimo v Kenya Ordinance Factories Corporation [2018] KEELRC 651 (KLR)

Employment and Labour Relations Court of Kenya
26 October 2018
HWHellen S. Wasilwa
4,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court threw out this unfair dismissal claim because the same worker had already lost the identical dispute in an earlier case.

What this practically means

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Executive summary

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The Claimant, Ann Gichimo, sued Kenya Ordinance Factories Corporation seeking damages for unlawful dismissal on 7th December 2011, claiming she had suffered sexual harassment and intimidation by senior management and that her termination was substantively and procedurally unfair. She sought 12 months' salary as compensation, damages under an early exit package, and general and aggravated damages. The Respondent defended the dismissal as grounded on gross misconduct (deletion of corporation files), maintained the disciplinary process was fair, and asserted a counterclaim for Kshs. 1,370,135.25. The Respondent's central plea was that the claim was res judicata, the fairness of the same disciplinary process having been determined by Korir J in HC JR Cause No. 330 of 2011, which the Claimant never appealed. Both parties filed extensive submissions citing authorities on unfair termination, natural justice, bias, defamation and the burden of proof. The court framed four issues: res judicata, valid reason for dismissal, fairness of the disciplinary process, and entitlement to remedies. Holding that Korir J and the ELRC were courts of equal and competent jurisdiction, and that the issue of the fairness of the disciplinary process had been heard and finally decided, the court declined to revisit the matter, reasoning that doing so would amount to sitting on appeal over a brother judge's decision. The remaining issues were not reached. The claim was found without merit and dismissed with costs to the Respondent. The judgment does not expressly dispose of the Respondent's counterclaim.

Key legal issues

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01

Res judicata

Holding

The claim is res judicata as the fairness of the disciplinary process was determined by Korir J in HC JR 330 of 2011 between the same parties.

Reasoning

The Respondent established that the Claimant previously filed HC JR Cause No. 330 of 2011 challenging the same disciplinary process, which Korir J dismissed with a finding that the process was fair. The Claimant admitted this and filed no appeal. Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties before a court of competent jurisdiction.

p. 5
02

Valid reason for dismissal / fair process

Holding

Not determined - the court declined to reach these issues because of the res judicata finding.

Reasoning

Having found the claim res judicata, the court held that any finding on the remaining issues would be of no value. It therefore did not make findings on whether there were valid reasons for termination, whether the disciplinary process was fair, whether the Managing Director was biased, or whether the termination letter was defamatory.

p. 5

Legal principles established

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  • A court of competent jurisdiction cannot re-try an issue that has been directly and substantially in issue in a former suit between the same parties that was heard and finally decided (res judicata under Section 7 of the Civil Procedure Act).
  • A court cannot sit on appeal over a decision of a court of coordinate jurisdiction.

Court orders

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  1. 1.Claim dismissed with costs to the Respondent.
  2. 2.Respondent's counterclaim not expressly ruled upon in the final orders; the court's final order was dismissal of the claim with costs.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45) and Section 7 of the Civil Procedure Act on 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, "Ann Gichimo v Kenya Ordinance Factories Corporation [2018] KEELRC 651 (KLR)", Case Analysis (2018). Cause No. 1353 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/651/eng@2018-10-26

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