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ELRCOtherPetition (ELRC, Nairobi) - number not stated in judgment· [2021] KEELRC 1983 (KLR)

Joseph Kaguthi & 11 others v Permanent Secretary Ministry of Interior & Coordination of Government & another [2021] KEELRC 1983 (KLR)

Employment and Labour Relations Court
3 March 2021
NMNzioki Wa Makau
2,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a dismissed permission application doesn't block a fresh case — res judicata only applies when a suit is fully heard and decided on its merits.

What this practically means

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Executive summary

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The Respondents opposed the Petitioners' petition through grounds of opposition and a preliminary objection, contending that the Petition was res judicata because the same parties had litigated the same issues in ELRC Cause 85 of 2020, which Radido J. dismissed by a Ruling on 22nd May 2020, and further that the claim in tort against the Government was time-barred under Section 3(1) of the Public Authorities Limitation Act. Miss Akuno argued that the issues were directly and substantially similar, had been determined by a competent court, and that the Petition was an abuse of court process; the Petitioners should have appealed or sought review. Mrs. Guserwa countered that Cause 85 of 2020 was merely an application for leave to institute suit out of time, not a suit on its merits, so the cause of action had never been adjudicated. The Court framed one issue: whether the Petition is res judicata. Applying Section 7 of the Civil Procedure Act and the four elements identified in Uhuru Highway Development Ltd v Central Bank of Kenya, the Court found that the prior Ruling merely dismissed an application for leave to file suit out of time and never determined the cause on its merits - a fundamental condition precedent to the plea. Relying on George W M Omondi and Kundan Singh Construction, the Court held the Petition was not res judicata and that the Petitioners' remedies were not barred. The jurisdiction point under the Public Authorities Limitation Act was not submitted upon and was not determined. The preliminary objection was dismissed without any order as to costs, with directions to issue for the disposal of the Petition.

Key legal issues

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01

Whether the Petition is res judicata given the prior Ruling in ELRC Cause 85 of 2020

Holding

The Petition is not res judicata because the prior cause was never heard and determined on its merits; only an application for leave to institute suit out of time was dismissed.

Reasoning

Applying Section 7 of the Civil Procedure Act and the elements in Uhuru Highway Development Ltd v Central Bank of Kenya, the court held that a plea of res judicata requires that the former suit have been heard and finally determined on its merits by a competent court. In George W M Omondi, Ringera J held that where the earlier suit was withdrawn rather than determined on merits, the plea fails. The prior Ruling of Radido J merely dismissed an application for leave to file suit out of time; the cause of action itself was never adjudicated. The Court of Appeal in Kundan Singh Construction supports this. The Petitioners' remedies were not barred.

p. 3

Legal principles established

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  • A fundamental condition precedent to a plea of res judicata is that the previous suit must have been heard and finally determined on its merits
  • Even where a party is barred from instituting a cause out of time, their substantive remedies are not necessarily barred

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.No order as to costs
  3. 3.Directions to be issued for the disposal of the Petition

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Public Authorities Limitation ActSection 3(1)
  • Civil Procedure ActSection 80 (cited within quoted passage from Law J.A.)
  • Constitution of Kenyanot specified (rights invoked by Petitioners)

Cases cited (13)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Peter Mbogo Njogu v Joyce Wambui Njogu & Another
    [2005] eKLR
  • Mwangi Njangu vs Meshack Mbogo Wambugu and Another
    HCCC 2340 of 1991 - Unreported
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others
    [1996] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313, 319
  • Yat Tung Investment Co. Ltd. vs Dao Heng Bank Ltd.
    (1975) AC 581, 590
  • E.T. v Attorney General & Another
    [2012] eKLR
  • Richard Kariuki v Leonard Kariuki & another
    Nairobi Misc. Civil App. No. 7 of 2006 (Unreported)
  • Karia and Another v The Attorney General and Others
    [2005] 1 EA 83, 89
  • William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR
  • George W M Omondi & Another v National Bank of Kenya Ltd & 2 Others
    [2001] eKLR
  • Kundan Singh Construction Limited & Another v Tanzania National Roads Agency
    [2019] eKLR
  • ELRC Cause 85 of 2020 - Joseph Kaguthi & 11 others v the Principal Secretary Ministry of Interior and Coordination of National Government & Another
    Ruling by Radido J., 22 May 2020
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution (petition alleging violation of labour rights); exact provision not stated in the judgment

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, "Joseph Kaguthi & 11 others v Permanent Secretary Ministry of Interior & Coordination of Government & another [2021] KEELRC 1983 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1983/eng@2021-03-03

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