Agnes Wangeci Munderu & 6 others v Seth Panyako, the General Secretary, Kenya National Union of Nurses & 2 others [2021] KEELRC 2286 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether Ground 1 (sub judice/multiplicity of suits) is a pure point of law
Ground 1 is a statement of fact and does not fit within the Mukisa Biscuits definition of a preliminary objection
The court held that the first ground comprised statements of fact which, by the Mukisa Biscuits definition, cannot form a preliminary objection. Determining whether the issues in this suit mirror those in the Eldoret and Nairobi matters would require examining pleadings and evidence not placed before the court, since the 2nd Respondent did not file the pleadings in Eldoret ELRC Petition No. 6 of 2020.
Whether the suit is sub judice given the Eldoret Petition
The court could not determine sub judice because the pleadings in the Eldoret Petition were not filed and the parties differ
The 2nd Respondent did not file the pleadings in Eldoret ELRC Petition No. 6 of 2020, only orders issued there. The parties are not identical: Petitioners 5, 6 and 7 in this suit are not parties to the Eldoret Petition, and Petitioners 8 and 6 in that Petition are not parties here. Whether the issues overlap is a matter of evidence, unsuitable for a preliminary objection.
Whether the court lacks jurisdiction under Article 41(4), the Union Constitution and the Labour Relations Act (exhaustion of internal remedies)
The jurisdictional objection rests on exhaustion of remedies and requires consideration of the Union Constitution, making it ineligible for determination as a preliminary objection
The court reasoned that the jurisdiction objection arises from the doctrine of exhaustion of remedies. Assessing it would require the court to examine the Union's Constitution, a matter requiring facts and documents beyond the pleadings, and therefore ineligible for resolution through a preliminary objection.
Legal principles established
#- A preliminary objection must consist of a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit without ascertaining facts
- Issues requiring examination of evidence or of documents such as a union constitution, not on record, cannot be resolved via a preliminary objection
Court orders
#- 1.The 2nd Respondent's preliminary objection is dismissed
- 2.Costs of the preliminary objection awarded to the Claimants
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 as read with Section 12(1) of the Employment and Labour Relations Court Act No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Wangeci Munderu & 6 others v Seth Panyako, the General Secretary, Kenya National Union of Nurses & 2 others [2021] KEELRC 2286 (KLR)", Case Analysis (2021). Cause No E681 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2286/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.