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ELRCStruck OutCause No. (not stated in judgment; suit filed 1st March 2013)· [2018] KEELRC 1287 (KLR)

Wilson Njau Huruko v Attorney General (being sued on behalf of the Government of Kenya, Ministry of Local Government) & another [2018] KEELRC 1287 (KLR)

Employment and Labour Relations Court
10 August 2018
2,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a worker's compensation claim because he had already lost a court case over the same termination.

What this practically means

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Executive summary

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The claimant was appointed by the Minister for Local Government in April 2008 as Government Representative to the Municipal Council of Thika for a five-year term. By a letter dated 14th December 2010 and Gazette Notice No. 16747 of 24th December 2010, his appointment was revoked and another person appointed. He filed a judicial review application (High Court Misc. Application No. 1 of 2011) seeking to quash the gazette notices, which Warsame J. dismissed on 2nd December 2011, holding that the Minister had legitimate discretion to appoint and remove him under Sections 112 and 113 of Cap 265. In March 2013 the claimant filed the present claim in this Court seeking declarations and damages for wrongful and unfair termination of his fixed-term appointment. The 1st respondent raised a preliminary objection on 23rd October 2017 arguing the suit was res judicata under Sections 7 and 8 of the Civil Procedure Act. The objection was disposed of by written submissions. The court found the parties and subject matter identical to the prior judicial review proceedings, and that the termination ruling was the very foundation of the employment claim. Applying the test in Karia v Attorney General and endorsing the principle that litigants cannot litigate in instalments, the court held the suit res judicata, upheld the preliminary objection, and dismissed the claim with costs on 10th August 2018.

Key legal issues

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01

Whether the claim is res judicata under Sections 7 and 8 of the Civil Procedure Act

Holding

Yes. The parties, subject matter and cause of action (revocation of the claimant's appointment as Government Representative to the Municipal Council of Thika) are the same as in JR Misc. Application No. 1 of 2011, which was finally determined by Warsame J.

Reasoning

The court noted it was not in contention that the claimant had previously filed judicial review proceedings over the same revocation, naming essentially the same parties (the AG and County Government of Kiambu now representing the same actors). Warsame J. had held the Minister had power to terminate the appointment, and that determination was the very foundation of the present employment claim. The court adopted the test in Karia v Attorney General and held that seeking different remedies does not evade res judicata.

p. 4
02

Whether the court could entertain the claim despite the prior judicial review ruling given its concurrent jurisdiction with the High Court

Holding

No. Sitting on the same issue would amount to sitting on its own appeal; the prior determination bars the suit.

Reasoning

Relying on the Fizz Hotels decision, the respondent argued (and the court accepted) that this court has concurrent jurisdiction with the High Court's Judicial Review Division and cannot adjudicate afresh over an issue already heard and determined there. The claimant's argument that only certiorari was sought and no compensation was claimed in the JR proceedings did not avail, because res judicata extends to the same cause of action regardless of the form of relief.

p. 2

Legal principles established

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  • Litigants cannot litigate in instalments; a litigant must bring all claims arising from the same subject matter in one suit, and res judicata bars a second visit even if the prayers sought are different
  • Res judicata applies where the parties are the same or litigating under the same title, the subject matter is the same, and the matter has been finally determined by a court of competent jurisdiction

Court orders

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  1. 1.The preliminary objection filed by the 1st respondent succeeds and is upheld
  2. 2.The claim filed by the claimant is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 266)Section 7
  • Civil Procedure Act (Cap 266)Section 8 (Bar to further suit)
  • Local Government Act (Cap 265)Sections 112 and 113 (referred to as Cap 265)

Cases cited (7)

  • KARIA & ANOTHER -V- THE ATTORNEY GENERAL AND OTHERS
    [2015] I EA 83
  • FIZZ HOTELS AND INVESTMENTS LIMITED -V- KENYA NATIONAL HIGHWAY AUTHORITY & ANOTHER
  • JOHN FLORENCE MARITIME SERVICES LIMITED & ANOTHER -V- CABINET SECRETARY FOR TRANSPORT AND INFRASTRUCTURE & 3 OTHERS
  • KAMUNYE & OTHERS –V- PIONEER GENERAL ASSURANCE SOCIETY LIMITED
  • SAMUEL NJAO WAINAINA -V- COMMISSIONER OF LANDS & 6 OTHERS
  • EDWIN THUO VS ATTORNEY GENERAL & ANOTHER, NAIROBI PETITION NO. 212 OF 2012
    Unreported
  • OMONDI VS NATIONAL BANK OF KENYA LIMITED AND OTHERS
    (2001) EA 177
On appeal from
High Court of Kenya at Nairobi, Judicial Review Division
Misc. Application No. 1 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (court held it has concurrent jurisdiction with the High Court divisions and cannot re-open a matter already determined)

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, "Wilson Njau Huruko v Attorney General (being sued on behalf of the Government of Kenya, Ministry of Local Government) & another [2018] KEELRC 1287 (KLR)", Case Analysis (2018). Cause No. (not stated in judgment; suit filed 1st March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1287/eng@2018-08-10

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