Kenya County Government Workers Union v Wairimu & 19 others (Cause 112 of 2018) [2018] KEELRC 2581 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's suit for filing a fresh Nakuru case to get orders it had already been denied in a live Nairobi case.
What this practically means
#Executive summary
#Key legal issues
#Whether the interim orders of 30th April, 2018 should be vacated for non-disclosure and abuse of process
Orders vacated; the claimant filed the Nakuru suit while Cause No. 606 of 2018 (Nairobi) was still alive, seeking similar orders already declined, which is abuse of court process and forum shopping.
The claimant's own General Secretary admitted in his replying affidavit that as at 30th April 2018, when the Nakuru court was moved, Cause No. 606 of 2018 was pending in Nairobi with directions for inter-parties hearing on 3rd May 2018. The Notice of Withdrawal filed on 30th April 2018 was never adopted by the Nairobi court as a final order and the matter remained registered and alive. Filing a fresh suit in Nakuru to obtain orders declined in Nairobi, before a court of equal jurisdiction, constituted forum shopping and abuse of process; the interim orders obtained thereby were tainted and could not stand.
Whether the suit is res judicata or sub judice
The court found the suit effectively sub judice given the pending Nairobi cause; sustaining it would visit injustice on the respondents.
The court set out the res judicata ingredients from Section 7 of the Civil Procedure Act and the John Florence Maritime case. Since Cause No. 606 of 2018 remained alive between the same parties over the same subject matter, sustaining the Nakuru suit would be unjust. The court also discussed the sub judice rule as a common law principle to be read in light of Article 33 protections on freedom of expression.
Position of the 16th respondent
The claimant sued the wrong person; Julius Musanka Kireu was misjoined as JULIUS MREFU and the wrongly named party is removed from the proceedings.
The 16th respondent demonstrated that he is Julius Musanka Kireu, the claimant's Youth Leader Narok Branch, and not JULIUS MREFU as named in the Memorandum of Claim. The duty lay with the claimant to amend its pleadings. Given the misjoinder and the potential orders, the wrongly named party was removed from the proceedings.
Legal principles established
#- Instituting simultaneous actions between the same parties in different courts over the same subject matter, or filing a new suit after orders were declined in a pending suit, amounts to forum shopping and abuse of court process.
- Where a party failed to obtain orders in a pending suit, the recourse is to return to the same court under the same cause for review, not to initiate a new suit.
Court orders
#- 1.The 16th respondent (JULIUS MREFU) is removed from the proceedings as misjoined
- 2.The respondents' application dated 9th May, 2018 is allowed and the conservatory orders issued on 30th April, 2018 restraining the Special Delegates' Conference are vacated/set aside
- 3.The suit (Cause No. 112 of 2018, Nakuru) is dismissed with costs to the respondents save for the party stated under the 16th respondent
- 4.Costs arising from the stoppage of the Special National Delegates Conference scheduled for 11th May, 2018 to be assessed as there is no account of loss incurred by the respondents
- Jurisdiction invoked
- Sections 3A and 3B of the Civil Procedure Act, Article 159 of the Constitution and Rules 17(3), (7), (8) and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v Wairimu & 19 others (Cause 112 of 2018) [2018] KEELRC 2581 (KLR)", Case Analysis (2018). Cause No. 112 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2581/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.