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ELRCPartially AllowedPetition No. 2213 of 2016 (Notice of Motion dated 9/1/2020)· [2021] KEELRC 2135 (KLR)

Aggrey Ajwang Juma v Kenya Railways Corporation [2021] KEELRC 2135 (KLR)

Employment and Labour Relations Court
18 February 2021
MNMathews N. Nduma
1,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court struck out a dismissed Kenya Railways employee's third attempt to sue over his 2002 dismissal, ruling it was time-barred and already decided.

What this practically means

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Executive summary

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Kenya Railways Corporation filed a Notice of Motion dated 9 January 2020 seeking dismissal or striking out of a petition by its former employee, Aggrey Ajwang Juma, on grounds of res judicata, statutory time-bar under Section 90 of the Employment Act and Section 87 of the Kenya Railways Corporation Act, and abuse of court process. The petitioner was allegedly dismissed or resigned on 18 October 2002. He had previously sued in Nakuru CMCC No. 2685 of 2003 over the same alleged unlawful interdiction and dismissal; that suit was dismissed in June 2013 as incompetent for being filed outside the 12-month limitation period under Section 87 of the Kenya Railways Corporation Act. He did not appeal, but instead filed ELRC Petition No. 2213 of 2016 before Radido J., which was struck out on 18 November 2016. He then filed the present petition claiming violation of fair labour practices, fair administrative action and non-payment of pension and retirement benefits. Nduma J. held that the issues were the same as those previously determined, merely repackaged as constitutional claims, making the cause res judicata; the proper remedy had been an appeal. The court allowed the application and struck out the petition with costs to the applicant. The judgment was delivered online pursuant to COVID-19 directives, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Res judicata

Holding

The petition is res judicata as it raises the same issues, between the same parties, as the earlier suit and petition

Reasoning

The petitioner's cause of action arose from his employment with Kenya Railways from 1972 to 2002. He had previously sued over the same alleged unlawful interdiction/dismissal in Nakuru CMCC No. 2685 of 2003, where the suit was dismissed as incompetent, and again in ELRC Petition No. 2213 of 2016, which Radido J. struck out. Raising the same issues for a third time, repackaged as constitutional claims, offends res judicata; the proper course was to appeal.

p. 2
02

Statutory limitation under the Kenya Railways Corporation Act

Holding

The prior suit was correctly dismissed as incompetent for being filed outside the 12-month limitation period in Section 87 of the Kenya Railways Corporation Act

Reasoning

The court noted the subordinate court's judgment of 2013 dismissed the suit for being commenced outside the 12 months allowed under Section 87 of the Kenya Railways Corporation Act. The applicant also invoked Section 90 of the Employment Act. The petitioner did not appeal that decision.

p. 2

Legal principles established

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  • Repackaging a previously determined claim as a constitutional petition does not defeat the doctrine of res judicata

Court orders

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  1. 1.The Notice of Motion application dated 9/1/2020 is allowed
  2. 2.The petition is struck out with costs to the respondent

Authorities

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Legislation

  • Employment ActSection 90
  • Kenya Railways Corporation ActSection 87
  • Constitution of KenyaArticle 2(1)(2)(3), 25(c), 28, 50(1), 159(2)(d), 48
  • Employment and Labour Relations Court ActSection 3(2) and 12(1)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 (Section 12(1)); Article 162(2) Constitution (labour and employment relations jurisdiction)

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, "Aggrey Ajwang Juma v Kenya Railways Corporation [2021] KEELRC 2135 (KLR)", Case Analysis (2021). Petition No. 2213 of 2016 (Notice of Motion dated 9/1/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2135/eng@2021-02-18

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