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ELRCOtherMiscellaneous Application (Notice of Motion dated 22nd November 2017)· [2018] KEELRC 1281 (KLR)

Job Omondi Ouma v Kenya Revenue Authority [2018] KEELRC 1281 (KLR)

Employment and Labour Relations Court
10 August 2018
MOMAUREEN ONYANGO
364 words in judgment
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The bottom line

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Kenya's Employment Court ruled you cannot sue through a miscellaneous application alone, but gave a self-represented worker a second chance to file properly.

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, delivered by Maureen Onyango, J on 10th August 2018, dealt with the claimant's application dated 22nd November 2017, which had been filed as a miscellaneous application by way of notice of motion. While perusing the file, the court noted that no substantive claim accompanied the application. The respondent, in a replying affidavit, had argued that the claimant had not withdrawn Cause No. 1099 of 2017 and that the suit was therefore res judicata. The court examined the notices of withdrawal and of intention to act in person, both dated 6th November 2017 and bearing matching court and respondent receipt stamps, and was satisfied that Cause No. 1099 of 2017 was properly withdrawn. Consequently, res judicata did not arise, as it would only apply had the earlier cause been determined on the merits. However, the court held that a claim cannot be founded on a miscellaneous application, observing that the claimant's filing strategy appeared influenced by the judicial review ruling in Republic v Cabinet Secretary, Ministry of Health & 2 Others ex-parte Elizabeth Awino Onyango. Applying Article 159(2) of the Constitution and Section 20(1) of the Employment and Labour Relations Court Act, and considering that the claimant was acting in person, the court deemed the application to be a claim, directed the claimant to file a memorandum of claim within 14 days, gave the respondent 14 days from service to file a defence, and fixed the suit for mention for further directions. No costs order was made.

Key legal issues

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01

Whether Cause No. 1099 of 2017 was properly withdrawn and hence whether res judicata arises

Holding

The claim was properly withdrawn, so res judicata does not arise as the prior cause was never determined on the merits

Reasoning

The court examined the court stamps and the respondent's receipt stamp on the notice of withdrawal and notice to act in person, both dated 6th November 2017, and was satisfied the withdrawal was proper. Res judicata could only apply had the prior cause been determined on the merits.

p. 2
02

Whether the suit is properly before the court as a miscellaneous application

Holding

It is not; a claim cannot be founded on a miscellaneous application

Reasoning

The court observed that only a miscellaneous application by notice of motion was on file. It linked the form of filing to the judicial review ruling in the Elizabeth Awino Onyango case, but held the suit could not proceed in that form and exercised its discretion to deem it a claim.

p. 2

Legal principles established

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  • A claim cannot be founded on a miscellaneous application
  • Res judicata applies only where a prior suit was determined on the merits
  • Under Article 159(2) of the Constitution and Section 20(1) of the Employment and Labour Relations Court Act, the court may deem a wrongly filed miscellaneous application to be a claim, particularly where a party is acting in person

Court orders

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  1. 1.The application dated 22nd November 2017 is deemed to be a claim
  2. 2.The claimant is directed to file a memorandum of claim within 14 days
  3. 3.The respondent will file a defence to the claim within 14 days of service
  4. 4.The suit will be mentioned on a date to be fixed at the time of delivery of the ruling for further directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Employment and Labour Relations Court ActSection 20(1)

Cases cited (1)

  • REPUBLIC -V- CABINET SECRETARY, MINISTRY OF HEALTH & 2 OTHERS Ex-Parte Elizabeth Awino Onyango
Jurisdiction invoked
Article 159(2) of the Constitution and Section 20(1) of the Employment and Labour Relations Court Act

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, "Job Omondi Ouma v Kenya Revenue Authority [2018] KEELRC 1281 (KLR)", Case Analysis (2018). Miscellaneous Application (Notice of Motion dated 22nd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1281/eng@2018-08-10

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