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ELRCStruck OutPetition No. E099 of 2020· [2021] KEELRC 1302 (KLR)

Hezekiah Chepkwony & another v Cabinet Secretary, Ministry of Health & another [2021] KEELRC 1302 (KLR)

Employment and Labour Relations Court
8 July 2021
MNMathews N. Nduma
4,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a second petition over the same deployment letters, warning that re-litigating a decided dispute wastes the court's time and costs money.

What this practically means

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Executive summary

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The petitioners, the Director and Senior Deputy Director of the National Quality Control Laboratory, challenged letters dated 12th June 2020 by the Cabinet Secretary, Ministry of Health deploying the 1st petitioner to Kenya Medical Training College and the 2nd petitioner to Moi Teaching and Referral Hospital. They sought declarations that the deployment violated Articles 10, 27, 28, 41 and 47 of the Constitution, certiorari to quash the letters, and compensation. The respondents replied that the same letters had already been declared invalid by Onesmus Makau, J. in a contempt ruling of 9th July 2020 in Nairobi ELRC Petition No. 124 of 2019; that the respondents' appeal (Civil Appeal No. 107 of 2020) was pending; and that the Court of Appeal had stayed both execution of that ruling and further proceedings in Petition No. 124 of 2019 on 28th September and 20th November 2020. The respondents argued the petition was res judicata, sub judice and an abuse of process, and cited Mumo Matemu and Annerita Karimi Njeru on lack of precision in pleading violations. The court framed three issues, chief among them whether it was functus officio. It found that the whole petition revolved around the lawfulness of the 12th June 2020 letters, already definitively determined and under appeal with stay orders. Applying Henderson v Henderson and the Benjoh Amalgamated formulation of res judicata, it held the petition violated res judicata and sub judice and was calculated to sidestep the Court of Appeal's stay. The petition was struck out with costs on 8th July 2021.

Key legal issues

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01

Whether the court was functus officio / the petition res judicata and sub judice given the pending appeal and stay orders

Holding

Yes - the petition is res judicata as regards this Court and sub judice as regards the Court of Appeal; it is an abuse of process and is struck out with costs

Reasoning

The impugned letters of deployment dated 12/6/2020 were already the subject of a definitive ruling by Onesmus Makau, J. on 9/7/2020 declaring them invalid. That ruling is on appeal in Civil Appeal No. 107 of 2020, and the Court of Appeal stayed both execution and further proceedings on 28/9/2020 and 20/11/2020. Filing this petition on 11/12/2020 sidestepped those interim orders.

p. 7
02

Whether the petitioners' alleged human rights violations could be litigated as a fresh cause of action

Holding

No - the cause of action remains the impugned letters of 12/6/2020 regardless of the new constitutional remedies pleaded

Reasoning

Although the petitioners pleaded new remedies constituting alleged breaches of their human rights, the court found that everything in the petition revolves around the lawfulness of the deployment letters of 12th June 2020, which had already been determined and are the subject of the pending appeal.

p. 6

Legal principles established

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  • The res judicata principle extends not only to points actually decided but to every point which properly belonged to the subject of litigation and which parties exercising reasonable diligence ought to have brought forward
  • A suit filed in direct affront to a subsisting stay of proceedings order of a superior court cannot be allowed to stand; filing it amounts to abuse of court process

Court orders

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  1. 1.The petition is struck out as an abuse of court process for violating res judicata and sub judice

Authorities

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Legislation

  • Public Service Commission ActSection 43
  • Human Resources Policies and Procedures Manual for the Public Service, May 2016Section 13.31 / B.13
  • Public Service Commission RegulationsSection 40(4)(c) and (d)
  • Public Service Commission ActSection 2 (definition of re-designation)
  • Constitution of Kenya, 2010Articles 10, 27, 28, 41, 47, 159(2)(d), 48, 232
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Mumo Matemu vs Trusted Society of Human Rights Alliance
    (2013) eKLR
  • Annerita Karimi Njeru
    (1979) KLR 154
  • Henderson vs Henderson
  • Kenya Commercial Bank Limited vs Benjoh Amalgamated
Jurisdiction invoked
Articles 10, 23, 27, 28, 41 and 47 of the Constitution of Kenya, 2010 (Bill of Rights enforcement jurisdiction); Article 159(2)(d) and 48 on procedure

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, "Hezekiah Chepkwony & another v Cabinet Secretary, Ministry of Health & another [2021] KEELRC 1302 (KLR)", Case Analysis (2021). Petition No. E099 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1302/eng@2021-07-08

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