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ELRCDismissedNot stated in judgment· [2021] KEELRC 2308 (KLR)

Macharia v Council of Governors & 48 others; Local Authorities Provident Fund (lapfund) & another (Interested Parties) (Petition E047 of 2021) [2021] KEELRC 2308 (KLR)

Employment and Labour Relations Court
8 November 2021
2,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A county worker's bid to stop the Council of Governors halting pension remittances failed because the same dispute was already before another judge.

What this practically means

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Executive summary

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The Petitioner, a County Government worker and member of the Local Authorities Provident Fund, filed a Notice of Motion dated 6th April 2021 seeking conservatory and injunctive orders restraining the Council of Governors from interfering with pension remittances by County Governments to the Interested Parties, from transferring members to other schemes, from making misrepresentative publications, and from usurping the mandate of County Public Service Boards. She argued the 1st Respondent's letter of 18th January 2021 directing counties not to remit contributions was unilateral, arbitrary, ultra vires and made without public participation, contrary to statutory obligations under Section 8(1) of the Local Authorities Provident Fund Act. The 1st Respondent replied that identical issues were pending in consolidated petitions before the Principal Judge, Lady Justice Maureen Onyango, rendering the suit sub judice; the 2nd Respondent and 2nd Interested Party added pleas of res judicata, sub judice and abuse of process, alleging sponsorship by Lapfund; the 3rd Respondent challenged jurisdiction and the form of the application. The court applied the sub judice rule, holding that where issues pending in one court are raised between the same parties in a later suit, the later matter must be stayed to avoid multiplicity of suits and conflicting decisions. Finding the parties and subject matter substantially similar to the pending consolidated petitions, the court stayed the suit pending their determination and dismissed the Application with no order as to costs. The merits of the ultra vires and public participation arguments were not reached.

Key legal issues

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01

Whether the Petition and Application are caught by the sub judice doctrine

Holding

Yes. The issues are directly and substantially in issue in consolidated petitions pending before the Principal Judge, so this suit must be stayed and the Application dismissed

Reasoning

The court explained the sub judice rule and its purpose: to prevent multiplicity of suits over the same subject matter and to avoid conflicting decisions by courts of competent jurisdiction. Where two or more cases between the same parties raise the same subject matter, the later-filed matter ought to be stayed pending determination of the earlier suit. The parties were similar save for the Petitioner, and multiple consolidated suits were pending before the Principal Judge.

p. 5
02

Whether the conservatory and injunctive orders sought should be granted

Holding

No; the Application was dismissed, the sub judice objection being determinative

Reasoning

Although the Applicant argued ultra vires, lack of consultation and statutory obligation to remit contributions under Section 8(1) of the Local Authorities Provident Fund Act, the court did not reach the merits because the sub judice doctrine required the suit to be stayed in favour of the pending consolidated petitions before the Principal Judge.

p. 5

Legal principles established

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  • The sub judice rule bars courts from trying an issue pending before another court between the same parties, and a later-filed suit on the same subject matter should be stayed pending determination of the earlier suit
  • The purpose of the sub judice rule is to prevent multiplicity of suits and conflicting decisions

Court orders

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  1. 1.The Application is dismissed
  2. 2.The suit is stayed pending determination of the Petitions and causes before the Principal Judge
  3. 3.No order as to costs

Authorities

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Legislation

  • Local Authorities Provident Fund Act (Cap 727) Laws of KenyaSection 8(1)

Cases cited (7)

  • Republic v Secretary of the Firearms Licensing Board & 2 Others, Exparte Senator Johnson Muthama
    [2018] eKLR
  • Republic v Public Procurement Administrative Review Board Exparte Nairobi City & Sewerage Company; Web Tribe Limited t/a Jambopay Limited (Interested Party)
    [2019] eKLR
  • Robert N. Gakuru & Others v Governor Kiambu County & 3 Others
    [2014] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    [2020] eKLR
  • The Local Authorities Pensions Trust Board of Trustees & Others v Attorney General & Others
    ELRC Nairobi Petition No. 230 of 2019 (Consolidated with Petitions Nos. 213 and 222 of 2019)
  • Evans Wafula Makokha & Another v Council of Governors & 2 Others
    ELRC Nairobi Civil Cause No. 107 of 2015
  • Evans Wafula Makokha & Another v Council of Governors & 6 Others
    ELRC Nairobi Petition No. 53 of 2015 (previously High Court (Nairobi) Petition No. 599 of 2014)
Jurisdiction invoked
Not expressly stated; Petition filed in the Employment and Labour Relations Court

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, "Macharia v Council of Governors & 48 others; Local Authorities Provident Fund (lapfund) & another (Interested Parties) (Petition E047 of 2021) [2021] KEELRC 2308 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2308/eng@2021-11-08

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