David Mwangi & 349 others v Council of Governors & 5 others; Kenya National Union of Nurses & another (Interested Parties) [2021] KEELRC 1109 (KLR)
The bottom line
#The Employment Court allowed 350 Murang'a nurses' salary claim to proceed, ruling it was not a repeat of earlier cases.
What this practically means
#Executive summary
#Key legal issues
#Res judicata under section 7 of the Civil Procedure Act
The defence of res judicata fails because neither the parties nor the subject matter of this suit replicate those of the previous suits, and the salaries claim was never heard and determined to finality
The court scrutinised the pleadings in the cited former suits and posed three questions: who were the parties, what was the subject matter, and whether the current claimants appear in the prior suits. It found the current claimants were not replicated in the previous suits, which were litigated by the 1st Interested Party as union, and that the issue of payment of the June-October 2017 salaries was not determined in Nyeri ELRC No.111 of 2018.
Validity of the preliminary objection
The preliminary objection is unsustainable because it requires factual analysis and is not a pure point of law
Applying Mukhisa Biscuits, the court held that determining the objection would require establishing who the parties to the earlier suits were and the subject matter in dispute, matters of fact and evidence. A preliminary objection cannot be raised where facts have to be ascertained, and therefore the objection and the supporting application both fail.
Legal principles established
#- Res judicata requires identity of parties and that the subject matter was directly and substantially in issue and finally decided in a former suit
- A preliminary objection must be a pure point of law and cannot be raised where facts require ascertainment
Court orders
#- 1.The preliminary objection dated 23rd November 2020 is dismissed
- 2.The application dated 23rd November 2020 is dismissed
- 3.Costs of the applications awarded to the Claimants
- Jurisdiction invoked
- Article 159 of the Constitution of the Republic of Kenya, 2010; Employment and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mwangi & 349 others v Council of Governors & 5 others; Kenya National Union of Nurses & another (Interested Parties) [2021] KEELRC 1109 (KLR)", Case Analysis (2021). ELRC Cause (Nyeri), Application and Preliminary Objection dated 23rd November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1109/eng@2021-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.