Joseph Oyollo Imbuye & another v Cabinet Secretary Ministry of Water and Sanitation & 2 others [2021] KEELRC 2264 (KLR)

Employment and Labour Relations Court

28 January 2021

MNMathews N. Nduma

713 words in judgment

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The bottom line

Kenya's Employment Court paused a board appointment challenge because an identical case was already underway in the High Court.

What this practically means

Executive summary

The respondents, through a replying affidavit sworn on 4/5/2020 by the 3rd respondent Dr. Julius Kones, raised a preliminary objection that this petition (ELRC Petition No. 11 of 2020) was sub judice, there being a similar matter, Nairobi Petition No. 276 of 2019 (Emmanuel Asibwa and Ramadhan Makonzi Juma v the Cabinet Secretary Ministry of Water and Sanitation and others), pending a ruling before Korir J. Both suits centrally sought a declaration nullifying the appointment of the 3rd to 8th respondents as members of the board of the 2nd respondent vide Legal Notice No. 1242 of 8th February 2019. The petitioners filed grounds of opposition, arguing that the petitioners in the two suits were different persons, that some respondents and reliefs differed, and that in any event the preliminary objection and the application dated 4/5/2020 sought the same relief and were duplicative and should be struck out. The court, Mathews N. Nduma J, held that although the petitioners differed, the two petitions shared the key respondents and the key relief, targeted the same Legal Notice, and that the Nairobi petition was at an advanced stage awaiting ruling. The court found the present petition sub judice and observed that continuing with it would set ELRC on a collision course with the High Court in Nairobi, with a possible conflicted outcome. The court accordingly stayed the petition and the application pending the full hearing and determination of HCC Petition No. 276 of 2019, with costs in the cause.

Key legal issues

Whether the petition is sub judice Nairobi Petition No. 276 of 2019

Holding

Yes; the two petitions target the same subject matter and relief — nullification of Legal Notice No. 1242 of 8/2/2019 and of the appointments of the 3rd to 8th respondents — and Petition 276 of 2019 is at an advanced stage before Korir J.

Reasoning

Although the petitioners differed, the court found the key respondents and the central relief identical in both suits. Proceedings in the Nairobi petition were not disputed to be at an advanced stage with a ruling awaited. Allowing both would risk conflicting outcomes between ELRC and the High Court. The court therefore stayed the present petition pending the outcome of the earlier petition.

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Whether the preliminary objection and the application dated 4/5/2020 should be struck out for duplicity

Holding

The petitioners' duplicity objection did not result in striking out either; the court instead stayed the petition, adopting the substance of the preliminary objection.

Reasoning

The court did not rule on the duplicity argument as such; it upheld the thrust of the preliminary objection on sub judice and stayed the petition rather than striking it out, preserving the suit for revival after the Nairobi petition is determined.

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Legal principles established

A petition is sub judice where a previously instituted suit between overlapping parties raises the same subject matter and key relief and is pending at an advanced stage before another court
Differences in some parties do not defeat sub judice where the key respondents and the key relief are shared

Court orders

1.This petition and the application dated 2/4/2020 are stayed pending the full hearing and determination of HCC Petition No. 276 of 2019
2.Costs in the cause

Authorities

Legislation

Constitution of KenyaArticle 159(2)(d)
Constitution of KenyaArticle 48
Civil Procedure ActSection 18
Civil Procedure RulesOrder 21 rule 1

Jurisdiction invoked: Article 159(2)(d) and Article 48 of the Constitution; Section 18 of the Civil Procedure Act (chapter 21, Laws of Kenya)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Oyollo Imbuye & another v Cabinet Secretary Ministry of Water and Sanitation & 2 others [2021] KEELRC 2264 (KLR)", Case Analysis (2021). ELRC Petition No. 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2264/eng@2021-01-28

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