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ELRCStruck OutELRC Cause No. 464 of 2015 (Mombasa)· [2018] KEELRC 2349 (KLR)

Dock Workers Union v Kenya Ports Authority [2018] KEELRC 2349 (KLR)

Employment and Labour Relations Court
8 March 2018
714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a union's claim because the same workers had already lost the identical case under a different party name.

What this practically means

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Executive summary

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The Respondent, Kenya Ports Authority, moved by Notice of Motion to strike out the Claimant union's claim on the ground that it was res judicata, having been conclusively determined in Mombasa ELRC Cause No. 448 of 2015 (Mohamed Takub Athmani & 20 others v Kenya Ports Authority), whose dismissal had been upheld on appeal. The Respondent's Head of Litigation, Turasha J. Kinyanjui, deponed that this claim had been kept in abeyance pending the hearing and determination of the earlier cause, which was dismissed on 29th February 2016. The Claimant, through Leonard Rufus Ochieng's replying affidavit, opposed the application, arguing that Rule 17(1) and (3) does not empower the Court to strike out claims, that the supporting affidavit did not comply with Section 22 of the Employment and Labour Relations Court Act, and that the parties and reliefs in the two causes differed. The Court framed a single issue: whether the claim was res judicata. Relying on Section 7 of the Civil Procedure Act and the Court of Appeal's restatement of res judicata in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the Court compared the substance of the two claims and found them identical in substance. The only difference was that the members had sued in their own names in the earlier cause, while the union now sued in its own name on their behalf - a cosmetic variation that could not defeat res judicata. The claim was struck out, with each party bearing its own costs.

Key legal issues

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Whether the claim is res judicata in light of Mombasa ELRC Cause No. 448 of 2015

Holding

The claim is res judicata and is struck out

Reasoning

The Court compared the substance of the two claims and found them similar. The only difference was that in the earlier cause the Claimant's members sued in their own names, while in the present claim the union sued in its own name on behalf of the same members. Section 7 of the Civil Procedure Act bars retrying a subject matter conclusively determined by a competent court between the same parties, so the current cause was ill advised.

p. 2

Legal principles established

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  • Suing through a representative in one's own name rather than in one's own name is a cosmetic variation that does not defeat res judicata where the same members and issues were previously litigated
  • Res judicata brings litigation to closure so that the same issues and parties do not repeatedly appear in court

Court orders

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  1. 1.The Claimant's cause is struck out as res judicata
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Employment and Labour Relations Court ActSection 22
  • Employment and Labour Relations Court (Procedure) RulesRule 17(1) and (3)

Cases cited (3)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi
    [2014] eKLR
  • Mohamed Takub Athmani & 20 others v Kenya Ports Authority
    Mombasa ELRC Cause No. 448 of 2015
  • Kenya Ports Authority v Mohamed Yakub Athmani & 19 others
    Civil Application No. 69 of 2015 (UR 58/15)
Jurisdiction invoked
Employment and Labour Relations Court Act, Employment and Labour Relations Court (Procedure) Rules 2016 Rule 17

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, "Dock Workers Union v Kenya Ports Authority [2018] KEELRC 2349 (KLR)", Case Analysis (2018). ELRC Cause No. 464 of 2015 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2349/eng@2018-03-08

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