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ELRCDismissedNotice of Motion Application dated 6th September, 2019 (ELRC, ref. to CMCC No. 550 of 2019 and Civil Appeal 660 of 2013 in record)· [2020] KEELRC 1636 (KLR)

David Ithau Wambua v Liberty Kenya Holdings Limited [2020] KEELRC 1636 (KLR)

Employment and Labour Relations Court
10 February 2020
HWHellen Wasilwa
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to reopen a logbook dispute it had already decided, warning employers against using review applications to relitigate lost issues.

What this practically means

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Executive summary

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The Respondent in a concluded employment claim moved the Employment and Labour Relations Court by Notice of Motion dated 6th September 2019 seeking review of the judgment of 30th April 2019 directing it to release the logbook of the Claimant's motor vehicle KBV 836J. The Applicant, represented through the affidavit of Jackson Mbuthia, argued that the logbook was not in its hands but belonged to Liberty Life Assurance Kenya Limited, a wholly-owned subsidiary that had advanced the Claimant a car loan of Kshs 1,350,000 in 2013 with an outstanding balance, and that Liberty Life, not being a party to the suit, could not be bound. The Claimant, David Ithau Wambui, opposed the application, maintaining that the logbook issue had been heard and determined in the main claim and in an earlier ruling; that the application was res judicata, an abuse of process and forum shopping, noting that Liberty Life's suit in CMCC No. 550 of 2019 had been dismissed as res judicata and sub judice. Parties filed written submissions. The court, Wasilwa J, found that the reason for ordering release of the logbook had already been canvassed and a ruling delivered, in which the Claimant established he had paid off the loan and that the Respondent had continued harassing him. The court held that making orders contrary to its own earlier orders would amount to sitting on appeal on its own orders. The application was accordingly dismissed with costs to the Claimant on 10th February 2020.

Key legal issues

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01

Whether the review application met the Rule 33 threshold

Holding

The application failed; the issue of the logbook had already been canvassed and a ruling delivered, and the applicant did not demonstrate error on the face of the record

Reasoning

The court noted that the reason for ordering release of the logbook was litigated and a ruling delivered, in which the Claimant established he had paid off the loan and that the Respondent had persistently sought to repossess the vehicle. Revisiting the matter would be an appeal against the court's own orders, which review jurisdiction does not permit.

p. 3
02

Res judicata

Holding

The court treated the loan/logbook issue as already determined, rendering the review application unmerited

Reasoning

The Claimant contended, supported by authority, that the issues raised had been handled during the hearing of the main claim and judgment delivered on 30/4/2019. The court's finding that the release-of-logbook question was canvassed and ruled upon effectively embraces the res judicata objection, without the court expressly analysing Section 7 of the Civil Procedure Act.

p. 3

Legal principles established

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  • A court cannot make orders contrary to its own earlier orders on review; doing so amounts to sitting on appeal on its own orders

Court orders

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  1. 1.The Notice of Motion application dated 6th September 2019 is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Judicature ActCertificate of Urgency
  • Civil Procedure ActSections 3A, 63(c) and (e); Section 7
  • The High Court (Practice and Procedure Rules)Part 1 Rule 3
  • Employment and Labour Relations Court ActSections 3, 12 and 13
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Employment Act, 2007Section 19

Cases cited (6)

  • The Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 Others
    (2017) eKLR
  • Triton Gas Station Limited & Another Vs Kenya Commercial Bank Limited & 2 Others
    (2015) eKLR
  • Abasi Belinda Vs Frederick Kangwamu and Another
    (1963) E.A 557
  • Pancras T. Swai Vs Kenya Breweries Limited
    (2014) eKLR
  • John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport & Infrastructure & 3 Others
    (2015) eKLR
  • Charles Mwangi Ringuru Vs Nancy Wangaru Mathenge
    (2014) eKLR
Jurisdiction invoked
Sections 3, 12 and 13 of the Employment and Labour Relations Court Act; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Sections 3A and 63(c) and (e) of the Civil Procedure Act

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, "David Ithau Wambua v Liberty Kenya Holdings Limited [2020] KEELRC 1636 (KLR)", Case Analysis (2020). Notice of Motion Application dated 6th September, 2019 (ELRC, ref. to CMCC No. 550 of 2019 and Civil Appeal 660 of 2013 in record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1636/eng@2020-02-10

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