Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] KEELRC 428 (KLR)
The bottom line
#Kenya's Employment Court struck out a petition filed while two earlier cases on the same dispute were still pending, punishing forum shopping with costs.
What this practically means
#Executive summary
#Key legal issues
#Sub judice
The suit was sub judice when filed because Petition No. 38 of 2020 and JR No. 9 of 2020, involving the same parties and subject matter, were pending and were only withdrawn after this suit was filed.
The court applied Sections 6 and 7 of the Civil Procedure Act. It found the three suits raised the same subject matter between the same parties. Both earlier suits were pending on 26th May 2020 when the instant suit was filed and when ex parte orders were obtained; withdrawals on 3rd and 19th June 2020 came after.
Res judicata
The plea of res judicata failed because the earlier suits were never finally determined.
Section 7 of the Civil Procedure Act requires that the matter in issue have been heard and finally decided by a competent court in a former suit. Since Petition No. 38 of 2020 and JR No. 9 of 2020 were withdrawn without final adjudication, res judicata was not established, though sub judice and abuse of process were.
Abuse of court process / forum shopping
The petition was an abuse of court process; the petitioner filed the instant suit after failing to obtain orders in two prior suits and withdrew them only after obtaining orders here.
Applying Muchanga Investments and related authority, the court held that instituting multiple suits on the same subject matter between the same parties, coupled with non-disclosure of the prior suits, amounted to forum shopping aimed at vexing the respondents and wasting judicial resources, justifying striking out the suit with costs.
Legal principles established
#- A suit filed while a previous suit between the same parties on the same subject matter is pending is sub judice; res judicata requires that the earlier suit have been finally determined.
- Filing successive suits on the same subject matter and withdrawing the earlier suits only after obtaining orders in the later one constitutes forum shopping and abuse of court process.
Court orders
#- 1.The suit (Petition No. 82 of 2020) is struck out for being sub judice at the time it was filed and for being an abuse of Court process
- 2.Costs of the suit awarded to the Respondents
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] KEELRC 428 (KLR)", Case Analysis (2021). Petition No. 82 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/428/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.