Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNyeri ELRC No. 4 of 2020· [2020] KEELRC 44 (KLR)

Joseph Muriithi Njeru v County Government of Kirinyaga [2020] KEELRC 44 (KLR)

Employment and Labour Relations Court
15 October 2020
NMNzioki wa Makau
2,337 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

#

A worker who loses a case in Kenya cannot simply file the same case again—courts will strike it out as an abuse of process.

What this practically means

#

Executive summary

#
The Respondent, the County Government of Kirinyaga, filed a notice of motion dated 4th August 2020 seeking to set aside or vacate the Court's orders of 27th July 2020, alongside a preliminary objection dated 24th June 2020 contending that the suit was barred by Sections 6 and 7 of the Civil Procedure Act as being res judicata and sub judice, Nyeri ELRC No. 192 of 2018 and No. 24 of 2019 having been between the same parties over the Claimant's redeployment as Sub-County Administrator. The Claimant opposed, arguing the application was incompetent as it was premised on the Civil Procedure Rules rather than the ELRC (Procedure) Rules, that no Rule 33 review grounds were met, and that the Respondent was in contempt of the Court's orders directing his resumption of duty. The Respondent relied on Freidman v State, Birds Paradise Tours & Travel Ltd v Hotel Secretaries and Salem Ahmed Hasson Zaidi to argue that a suit dismissed for non-attendance bars a fresh suit on the same cause of action. The Court framed two issues: whether the suit was res judicata/sub judice, and whether the interim orders should be set aside. Applying Birds Paradise Tours, the Court held the suit substantially res judicata, since the Claimant should have appealed or sought review of the dismissal of the earlier suits rather than filing afresh. The Court upheld the preliminary objection and struck out the suit, but refused to set aside the interim orders, observing that the Respondent had admitted failing to obey them and that court orders are not mere suggestions. No order as to costs was made.

Key legal issues

#
01

Whether the suit is res judicata / sub judice under Sections 6 and 7 of the Civil Procedure Act

Holding

The suit is substantially res judicata and is struck out on the preliminary objection

Reasoning

The matter in issue was the same as in Nyeri ELRC No. 192 of 2018 and No. 24 of 2019, between the same parties litigating under the same title. The earlier suit was dismissed for non-attendance and the Claimant neither appealed nor sought review or reinstatement, but filed a fresh suit. Following Birds Paradise Tours, the Claimant is prohibited from bringing the fresh suit; res judicata applies even where a suit is dismissed.

p. 3
02

Whether the orders of 13th July 2020 should be set aside

Holding

Setting aside refused; no sufficient grounds shown and the Respondent admitted failing to abide by the orders

Reasoning

The Respondent failed to demonstrate sufficient reasons for setting aside the interim orders. The Court emphasized that court orders are binding, not suggestions, and noted the Respondent's admitted failure to comply with them. The Respondent nonetheless remains obliged to obey the orders despite the striking out of the suit.

p. 3

Legal principles established

#
  • The principle of res judicata applies even where a suit is dismissed; a party who did not apply to set aside or vary a dismissal, or appeal, is prohibited from bringing a fresh suit on the same cause of action
  • Court orders must be obeyed and are not mere suggestions

Court orders

#
  1. 1.The Respondent's preliminary objection dated 24th June 2020 is upheld
  2. 2.The suit is struck out
  3. 3.No order as to costs
  4. 4.The Respondent must obey the Court orders issued in the matter

Authorities

#

Legislation

  • Civil Procedure ActSections 6 and 7
  • Civil Procedure RulesOrder 12 Rule 6(2); Order 12 Rule 7
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Public Service Commission Human Resource Policies and Procedures Manualsix-month acting cap (as invoked by Claimant)

Cases cited (3)

  • Freidman v State
    53 Misc. 2d 955, 278 N.Y.S.2d 999 (Ct. Cl. 1967)
  • Birds Paradise Tours & Travel Ltd v Hotel Secretaries
    [1990] KLR 58
  • Salem Ahmed Hasson Zaidi v Faud Hussein Humeid
    [1960] EA 92
Jurisdiction invoked
Employment and Labour Relations Court enabling statute and ELRC (Procedure) Rules (court's own enabling statutes and rules cited by the parties)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Muriithi Njeru v County Government of Kirinyaga [2020] KEELRC 44 (KLR)", Case Analysis (2020). Nyeri ELRC No. 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/44/eng@2020-10-15

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