Laban Owino Ochieng v Awanad Enterprises Limited & 3 others [2021] KEELRC 1520 (KLR)
The bottom line
#A Kenyan court struck out a former employee's commission claim because he had already litigated—or should have litigated—every issue in two earlier failed lawsuits.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim is res judicata
Yes — the previous suits involved the same parties, issues and transactions; the suit is trapped by res judicata and must fail as an abuse of court process
The two prior suits were between the same parties and concerned the same 3% commission claims based on the claimant's resignation of 30.04.2012. Even though they were dismissed on preliminary grounds (jurisdiction, improper filing, time bar), the claimant ought with due diligence to have raised all his grounds, including the alleged partial rejection of his resignation and continuation of work until 2017, in ELRC Cause No. 22 of 2019. Re-pleading the case now amounts to re-engineering to defeat the time-bar finding.
Whether the Court can depart from the finding in ELRC Cause No. 22 of 2019 that the claim was time barred
No — that finding binds this Court and the Court is functus officio as regards that suit
The claimant argued his resignation was only partially rejected and he managed projects until 2017, so the cause of action arose in 2017. The Court held this new argument should have been raised in the earlier case; the prior dismissal for want of jurisdiction did not license re-litigation, and the functus officio doctrine and res judicata both bar the claim.
Legal principles established
#- Res judicata applies even where prior suits were dismissed on preliminary grounds, because with due diligence all matters ought to have been raised in the earlier suit
- Res judicata was invented to achieve finality in litigation and is a valid bar to re-litigating disputes
- A court that has delivered a ruling is functus officio and cannot reopen the suit; its findings bind a court of concurrent jurisdiction
Court orders
#- 1.The 1st, 2nd and 4th respondents' applications dated 12.08.2020 are allowed
- 2.The claimant's memorandum of claim is struck out with costs
- Jurisdiction invoked
- Article 162(2) of the Constitution read with section 90 of the Employment Act, 2007 and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (as invoked by the parties' applications under those provisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laban Owino Ochieng v Awanad Enterprises Limited & 3 others [2021] KEELRC 1520 (KLR)", Case Analysis (2021). ELRC Cause (Mombasa) — applications dated 12.08.2020 in the claimant's memorandum of claim. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1520/eng@2021-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.