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ELRCDismissedCause No. 133N of 2008 (formerly Industrial Court, Nairobi)· [2021] KEELRC 395 (KLR)

Alphonse Mwangemi Munga & 10 others v African Safari Club Limited & 3 others;Erdemann Property Limited & 3 others (Interested Parties) [2021] KEELRC 395 (KLR)

Employment and Labour Relations Court
19 November 2021
5,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed an attempt to overturn a 2013 property sale, ruling the same issues had already been decided and could not be relitigated.

What this practically means

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Executive summary

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The Applicants, purporting to act for the estate of Karl Jacobs Ruedin (deceased), applied by notice of motion dated 27th February 2020 for declarations that consent orders recorded and adopted by the Employment and Labour Relations Court on 2nd December 2013 - which paved the way for the public auction of the suit premises, LR No. 1515/1/MN, and its transfer to Erdemann Property Limited - were procured without jurisdiction, by fraud and collusion, and in violation of Articles 25(c), 40, 48, 50(1), 159(2)(e) and 160(1) of the Constitution, and for the sale, transfers and registration to be set aside and the Applicants restored to the property. They argued the deceased had died before the consent was recorded, his estate was unrepresented, the court lacked jurisdiction, the auction breached the conditions of sale, and the property was sold far below value. The Respondents/Claimants and the 1st Interested Party opposed, arguing res judicata, failure to meet the review threshold under Section 80 and Order 45 of the Civil Procedure Act, lack of locus standi absent letters of administration, abuse of process, contempt of court, and that the 1st Interested Party was an innocent purchaser for value. Framing three issues, the court, Maureen Onyango J, held res judicata is a jurisdictional issue to be addressed first; applying the Supreme Court's conjunctive test in IEBC v Maina Kiai, she found the same parties had litigated the same substratum - execution of the impugned consent - in the review application of 30th January 2014, Civil Appeal No. 314 of 2014 and related petitions, and the Court of Appeal had finally determined the issue by upholding the ELRC decision. The court declined to consider the remaining issues and dismissed the application with costs on 19th November 2021.

Key legal issues

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01

Whether the application offends the res judicata rule

Holding

Yes. The substratum of the application - the impugned consent orders of 11th December 2013 and their execution - was heard and finally determined in the review application of 30th January 2014, whose dismissal was upheld by the Court of Appeal in Civil Appeal No. 314 of 2014, and in subsequent proceedings. All elements of res judicata were satisfied conjunctively.

Reasoning

The court applied the Supreme Court's formulation in IEBC v Maina Kiai, holding the elements must be satisfied conjunctively. The same parties, litigating under the same title, had raised the identical issue of execution of the impugned consent in a former suit before competent courts, and the Court of Appeal had finally determined the issue by upholding the ELRC decision. Once that was established, the court declined to delve into the remaining issues.

p. 8
02

Whether the application met the threshold for review under Section 80 and Order 45 of the Civil Procedure Act

Holding

The court found it unnecessary to determine this issue given the finding on res judicata.

Reasoning

Having disposed of the application on the jurisdictional ground of res judicata, the court expressly declined to consider whether the applicants had demonstrated discovery of new and important matter, absence of inordinate delay, or other grounds for review; those issues were overtaken by the res judicata finding.

p. 8
03

Whether the Applicants are entitled to the orders sought

Holding

No. The application having offended res judicata, the applicants were not entitled to any of the orders sought, including setting aside the consent orders, the auction sale, and the registration of the 1st Interested Party.

Reasoning

The entitlement to relief fell away with the res judicata finding. The court did not adjudicate the substantive allegations of fraud, lack of jurisdiction, violation of Articles 25(c) and 50(1), intermeddling under section 45 of the Law of Succession Act, or the innocent purchaser claim raised by the 1st Interested Party.

p. 8

Legal principles established

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  • Res judicata is a jurisdictional issue that must be considered at the earliest opportunity, and all its elements must be satisfied conjunctively before the doctrine is invoked
  • Where a court of competent jurisdiction, such as the Court of Appeal, has upheld a decision finally determining an issue, a subsequent application raising the same issue between the same parties is barred by res judicata

Court orders

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  1. 1.The instant application dated 27th February 2020 is dismissed with costs
  2. 2.Costs awarded to the Respondents/Claimants

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 25(c), 40, 48, 50(1), 159(2), 160(1) & (5)
  • Employment and Labour Relations Court Act, No. 20 of 2011Sections 2, 3, 12(3)(i)(iv)&(viii), 16, 20, 29
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 7, 63(e), 80, 91
  • Civil Procedure RulesOrder 45 Rule 1(1)(a)
  • Auctioneers Act, No. 5 of 1996Sections 21(1) and (3), 30
  • Auctioneers Rules, 1997Rules 11(1)(a)(i-v), 11(b), 15(c) and (d), 16(1)(f), 17(4)
  • Law of Succession Act, Cap 160Section 45

Cases cited (8)

  • Republic v Karisa Chengo & 2 Others
    (2017) eKLR
  • Albert Chaurembo Mumba & 7 Others v Maurice Munyau & 148 Others
    Petition No. 3 of 2016 [2019] eKLR
  • Josephat Ndirangu Waweru T/A Mooreland Mercantile Co. v Hill Work Furniture Limited
    C.A No. 36 of 2012 [2015] eKLR
  • Republic v Principal Secretary, Ministry of Internal Security & another Ex Parte Schon Noorani & another
    [2020] eKLR
  • Estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia
    Civil Appeal 411 of 2018 [2020] eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another
    (1982-99) 1 KAR
Jurisdiction invoked
Employment and Labour Relations Court Act, No. 20 of 2011 (Sections 2, 3, 12, 16, 20 and 29 invoked on jurisdiction; application under Sections 80 and Order 45 Rule 1 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, "Alphonse Mwangemi Munga & 10 others v African Safari Club Limited & 3 others;Erdemann Property Limited & 3 others (Interested Parties) [2021] KEELRC 395 (KLR)", Case Analysis (2021). Cause No. 133N of 2008 (formerly Industrial Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/395/eng@2021-11-19

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