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ELRCDismissedCause No E051 of 2021· [2021] KEELRC 441 (KLR)

Kenneth Okech Maena v Trustees/Executive Committee S.D.A Church Kenya Lake Conference & 2 others [2021] KEELRC 441 (KLR)

Employment and Labour Relations Court
18 November 2021
CBCHRISTINE N. BAARI
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a worker's church-related claim as a duplicate of an earlier case, but confirmed you needn't exhaust foreign internal appeal mechanisms.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu, per Christine N. Baari J, delivered a ruling on a Notice of Preliminary Objection dated 10th August 2021 in which the Respondents, organs of the Seventh Day Adventist Church, contended that the Claimant's suit was premature for breach of the doctrine of exhaustion, barred under section 9(2) of the Fair Administrative Actions Act, 2015, offended the sub judice rule under section 6 of the Civil Procedure Act, and was an abuse of process given related proceedings (Kisumu ELRC Petition No. E17 of 2021 and Cause No. E44 of 2020). On exhaustion, the court found the Claimant had already undergone two levels of internal disciplinary process, including referral to the East and Central Division, and that the apex mechanism, the General Conference in Sessions, sits outside Kenya, leaving no sufficient internal safeguard; insisting on exhaustion would deny access to justice and was futile given the Claimant's lost trust. That ground failed. On sub judice, the court applied section 6 of the Civil Procedure Act and the Supreme Court's exposition in the KNCHR case, finding multiple suits between the same parties over the same 17th December 2020 recommendation pending before competent courts. Relying on Thiba Min Hydro, it held substance, not form, determines sub judice despite the differing procedural framing. The suit was held sub judice, frivolous and abusive, and was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the claim violates the doctrine of exhaustion

Holding

The objection on exhaustion fails; the Claimant had exhausted available internal mechanisms, the apex mechanism being abroad, and access to justice would be denied by insisting on exhaustion

Reasoning

The Claimant had undergone two levels of the Respondents' disciplinary process, including referral to the East and Central Division, an organ superior to both Respondents, which produced the 17th December 2020 recommendation challenged in the suit. The only remaining avenue, the General Conference in Sessions, is situated outside Kenya, so no sufficient internal safeguard remains. The Claimant had also lost trust in the mechanism, making further recourse futile and inconsistent with constitutional access to justice.

p. 3
02

Whether the suit offends the sub judice rule under section 6 of the Civil Procedure Act

Holding

The suit offends the doctrine of sub judice, is frivolous and an abuse of court process, and is dismissed with costs

Reasoning

The elements of sub judice were met: multiple suits between the same parties arising from the same decision of 17th December 2020 were pending before courts of competent jurisdiction. Although the prior petition was framed as a petition and this suit as a Memorandum of Claim, substance prevails over form. Parallel litigation over the same subject matter risked conflicting decisions, and a pending preliminary objection in the earlier petition confirmed the litigation was abusive.

p. 3

Legal principles established

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  • Where the highest internal dispute resolution mechanism is situated outside the country, there are no remaining sufficient safeguards other than the courts, and forcing a claimant who has lost trust in internal mechanisms through them is futile
  • Sub judice is determined by the substance of the suits, not the form in which they are framed

Court orders

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  1. 1.The suit is dismissed with costs to the Respondents

Authorities

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Legislation

  • Fair Administrative Actions ActSection 9(2) and 9(2)(3)
  • Civil Procedure ActSection 6

Cases cited (6)

  • Aviation and Allied Workers Union Kenya V Kenya Airways Limited & 3 Others
  • Geoffrey Muthinji & Another V Samuel Henry & 7 Others
    (2015) eKLR
  • Muchanga Investments Limited V Safaris Unlimited (Africa) Limited & 2 Others
    (2009) eKLR
  • Madara Evan Okanga Dongo V Housing Finance Company of Kenya
    (2005) eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others
  • Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment and labour law; suit filed by Memorandum of Claim

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, "Kenneth Okech Maena v Trustees/Executive Committee S.D.A Church Kenya Lake Conference & 2 others [2021] KEELRC 441 (KLR)", Case Analysis (2021). Cause No E051 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/441/eng@2021-11-18

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