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ELRCPartially AllowedCivil Appeal No. 46 of 2017 (formerly High Court Civil Appeal No. 39 of 2016)· [2019] KEELRC 1707 (KLR)

Oserian Development Company Limited v Jackson Oteyo Sila [2019] KEELRC 1707 (KLR)

Employment and Labour Relations Court of Kenya
18 October 2018
MMM. Mbaru
2,761 words in judgment
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The bottom line

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Kenya's Employment Court threw out a worker's entire injury claim because he filed it years late after earlier failed suits over the same injury.

What this practically means

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Executive summary

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The appellant, Oserian Development Company Limited, appealed against the judgment of Hon. P N Gesora, Chief Magistrate at Naivasha in Civil Case No.106 of 2015, which found it 80% liable in negligence for a 1999 workplace fall and awarded the respondent Kshs.3,000,000 in general damages while dismissing special damages. The appellant argued negligence was not established, the damages were excessive, and raised limitation and multiplicity of suits. The respondent maintained the apportionment and award were sound. The court, sitting as a first appeal court under section 17 of the Employment and Labour Relations Court Act, 2011, focused on two preliminary questions of law the lower court had failed to address. First, on the record were two prior suits by the respondent over the identical 13th October 1999 cause of action: Naivasha CMCC No.168 of 2002 (struck out) and CMCC No.275 of 2004 (withdrawn on 15th February 2016, just before judgment). Citing DT Dobie & Company (K) Ltd v Muchina, the court held a struck-out matter cannot be revived in a fresh suit, that the suit subject of appeal was sub judice and an abuse of process. Second, the suit filed in September 2005 for a 1999 injury, without leave, was barred by the Limitation of Actions Act. The court held preliminary questions of law must be addressed instantly once raised, and proceeding on a statute-barred matter erodes the rule of law. The appeal was allowed and the lower court judgment set aside in its entirety, with costs to the appellant.

Key legal issues

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01

Multiplicity of suits / sub judice

Holding

The respondent filed successive suits over the same cause of action after the first suit was struck out; the suit subject of appeal was sub judice and an abuse of court process

Reasoning

The respondent first filed CMCC No.168 of 2002 which was struck out. He then filed CMCC No.275 of 2004, withdrawn only on 15th February 2016, just before judgment, and CMCC No.243/2005 filed in September 2005 while No.275 of 2004 existed. A struck-out matter cannot be revived in a fresh suit; the repeated litigation on the same cause of action constituted abuse of process.

p. 3
02

Limitation of actions

Holding

The suit filed in 2005 for a 1999 workplace injury, without leave, was time barred under the Limitation of Actions Act

Reasoning

The cause of action arose on 13th October 1999 and the fresh suit was filed on 27th September 2005 without leave to file out of time. The defence raised limitation in paragraph 2 of the defence dated 3rd January 2006, but the lower court failed to address it. A claim barred in time erodes the rule of law and justice if left unaddressed.

p. 4
03

Duty of court on preliminary points of law

Holding

The lower court erred in failing to address preliminary questions of law raised in the defence before proceeding to judgment

Reasoning

The defence dated 3rd January 2006 raised multiplicity of suits and limitation in paragraph 2. The court held these preliminary questions must be addressed instantly once raised, by party or on the court's own motion, as proceeding on a statute-barred matter erodes the rule of law and justice to the parties.

p. 2

Legal principles established

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  • A matter struck out cannot be revived by a fresh suit on the same cause of action; a new suit on the same facts is sub judice
  • Preliminary questions of law, including limitation, must be addressed by the court as soon as raised

Court orders

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  1. 1.The judgment of the lower court is set aside in its entirety
  2. 2.The appeal is allowed with costs to the appellant

Authorities

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Legislation

  • Limitation of Actions Actgeneral
  • Employment Act, 2007sections 87 and 90
  • Employment and Labour Relations Court Act, 2011section 17
  • Civil Procedure RulesOrder 2 Rule 15
  • Court of Appeal RulesRule 104(a)

Cases cited (9)

  • Selle versus Associated Motor Boat Company Ltd
    [1968] E.A. 123
  • Kiamokama Tea Factory Co. Ltd versus Joshua Nyakoni
    [2015] eKLR
  • Barclays Bank of Kenya Ltd versus Patriotic Guards Ltd
    [2015] eKLR
  • Butt versus Khan
    [1982-1988] 1 KLR
  • Grace Mwenda Munjuri versus Trustees of the Agricultural Society of Kenya
    [2017] eKLR
  • Mwangi versus Wambugu
    (1984) KLR 453
  • Peters versus Sunday Post Ltd
    (1958) EA 424
  • DT Dobie & Company (K) Ltd versus Muchina
    (1982) KLR
  • Kenya Power & Lighting Company Limited versus Collins Agumba Aboge
    [2016] eKLR
On appeal from
Chief Magistrate's Court, Naivasha
Civil Case No. 106 of 2015
Jurisdiction invoked
Section 17 of the Employment and Labour Relations Court Act, 2011 (first appeal over the Magistrate's Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Oserian Development Company Limited v Jackson Oteyo Sila [2019] KEELRC 1707 (KLR)", Case Analysis (2018). Civil Appeal No. 46 of 2017 (formerly High Court Civil Appeal No. 39 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1707/eng@2019-05-16

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