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ELRCOtherNot stated in extract (claim filed 2012)· [2018] KEELRC 1130 (KLR)

Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Limited [2018] KEELRC 1130 (KLR)

Employment and Labour Relations Court
28 September 2018
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused a state company's bid to restart a six-year-old workers' case, ruling changing lawyers does not entitle anyone to a fresh hearing.

What this practically means

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Executive summary

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This interlocutory Ruling by the Employment and Labour Relations Court at Mombasa (James Rika, Judge) disposes of a Respondent's application filed on 25th January 2018 seeking to re-open the hearing of a 2012 claim brought by a union on behalf of about 2,000 former employees for reinstatement or compensation for unfair termination, and to have the claim dismissed or struck out. The Respondent argued it understood the matter would be heard de novo on 24th October 2017, that the court file lacked the Memorandum of Claim and Summons, and that the claim was res judicata given judgment in Nairobi Industrial Court Cause Number 1788 of 2011 delivered on 20th April 2017 over similar issues. The Claimant opposed, asserting the Respondent had had every opportunity to be heard and that the two causes were unrelated. The Court held there was no direction for a de novo hearing, the trial Judge had not changed, and the Respondent had filed a Statement of Response showing access to pleadings; accepting the Respondent's position would mean a fresh hearing whenever a party changes Advocates. Res judicata was a new issue, never raised during the hearing, to be determined with the rest of the Claim in submissions rather than by reopening. The Respondent had not been denied the right to be heard, and the 2012 claim had to be brought to an end. The Application was rejected, both parties were directed to file (supplementary) submissions addressing res judicata within 14 days, and costs of the application were awarded to the Claimant.

Key legal issues

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01

Whether new instructions to fresh Advocates justify a de novo hearing

Holding

No. The matter was not directed to start afresh; the Respondent's Advocates had access to pleadings and the trial Judge was unchanged.

Reasoning

The file was transferred to Mombasa to continue the hearing, not to start afresh. The Respondent filed a Statement of Response, showing it had the pleadings, and its own letters show it declined to pay for copies. Accepting the Respondent's position would mean a de novo hearing every time a party changes Advocates, causing endless delay in finalisation of claims.

p. 3
02

Whether res judicata based on Cause Number 1788 of 2011 merits reopening

Holding

No. It is a new issue to be determined with the rest of the Claim after submissions, without reopening proceedings.

Reasoning

The Respondent never raised res judicata during the hearing of the Claimant's evidence. The court may not adjudicate issues already finally determined by another court, but the proper course is to consider the point in closing submissions now that Cause Number 1788 of 2011 has been brought to its attention, not to reopen and strike out peremptorily.

p. 3
03

Whether the Respondent was denied the right to be heard

Holding

No. The Respondent filed a Statement of Response, fully participated at Nairobi, cross-examined the Claimant's main witness, and could have filed closing submissions.

Reasoning

The Respondent participated fully in proceedings at Nairobi, cross-examined the main witness at length, changed Advocates midstream with the Court's indulgence, and was allocated consecutive hearing days. Courts must not delay justice; a claim filed in 2012 must be brought to an end.

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Legal principles established

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  • A change of Advocates does not entitle a party to a hearing de novo; parties must supply their new Advocates with the pleadings
  • A court must consider a relevant judgment on similar issues between the same parties brought to its attention before retirement to write judgment, to determine res judicata

Court orders

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  1. 1.The Application filed by the Respondent on 25th January 2018 is rejected
  2. 2.The Respondent shall file and serve its Closing Submissions, including submission on res judicata, within 14 days of this Ruling
  3. 3.The Claimant may file Supplementary Submissions focusing on res judicata, within 14 days of receiving Respondent's Submissions
  4. 4.Costs of the Application to the Claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution and statute (not specifically cited in extract)

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 & Allied Workers Union v Kenya Power & Lighting Company Limited [2018] KEELRC 1130 (KLR)", Case Analysis (2018). Not stated in extract (claim filed 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1130/eng@2018-09-28

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