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ELRCStruck OutEmployment and Labour Relations Court Claim (Memorandum of Claim dated 5th November 2020, filed 17th November 2020)· [2022] KEELRC 250 (KLR)

Kenya Union of Domestic Workers, Hotels Educational Institutions, Hospital and Allied Workers (Kudheiha) v Cabinet Secretary, Ministry of Science and Technology & 2 others [2022] KEELRC 250 (KLR)

Employment and Labour Relations Court
31 March 2022
1,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out KUDHEIHA's CBA claim because the same issues had already been decided in a 2009 case between the same parties.

What this practically means

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Executive summary

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KUDHEIHA, a union representing non-teaching staff in educational institutions, filed a Memorandum of Claim dated 5th November 2020 against the Teachers Service Commission and another Respondent, seeking orders compelling them to negotiate, conclude and sign a Collective Bargaining Agreement and to review the CBA dated 18th March 1986, failing which the 1986 CBA should be deemed reviewed and binding. The Claimant relied on Section 57 of the Labour Relations Act and on the conciliation process conducted by the Cabinet Secretary, Ministry of Labour & Social Protection, which closed without resolution. The Respondents denied any obligation to negotiate, contending that the 1986 CBA and Recognition Agreement lapsed following Legal Notices No 262 and 263 of 26th August 1993, which transferred the hiring and management of non-teaching staff to Boards of Governors. In their submissions the Respondents also raised res judicata, asserting that the same issues had been conclusively determined in Industrial Court Cause No 26 of 2009 (KUDHEIHA v Ministry of Education). Applying Section 7 of the Civil Procedure Act and the five conjunctive elements of res judicata drawn from the Invesco Assurance decision, the court found that the issues in the present claim had been fully ventilated and determined in Cause No 26 of 2009 between the same parties. It therefore struck out the Claimant's claim and ordered each party to bear their own costs. The substantive questions on the obligation to negotiate were not determined on the merits.

Key legal issues

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01

Whether the claim is res judicata

Holding

Yes; the issues raised were fully ventilated and determined in Industrial Court Cause No 26 of 2009 between the same parties, satisfying Section 7 of the Civil Procedure Act

Reasoning

The court applied the five conjunctive elements of res judicata under Section 7 of the Civil Procedure Act as summarised in Invesco Assurance. It examined Cause No 26 of 2009 and found the same issues had been fully ventilated and determined between the same parties. The claim therefore offended the doctrine and had to be struck out.

p. 3
02

Whether the Respondents were obliged to negotiate, conclude and sign a CBA and review the 1986 CBA

Holding

Not determined on the merits; the claim was struck out as res judicata before reaching the substantive question

Reasoning

The Respondents had argued that the 1986 CBA lapsed following Legal Notices No 262 and 263 of 26th August 1993, which altered the employment relationship and transferred responsibility for non-teaching staff to Boards of Governors. The court did not resolve this substantive dispute because the res judicata bar disposed of the claim.

p. 2

Legal principles established

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  • For the bar of res judicata to apply, the party raising it must satisfy the five essential elements in Section 7 of the Civil Procedure Act, stipulated in conjunctive terms
  • Where a claim is res judicata, the proper course is to strike it out

Court orders

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  1. 1.The Claimant's claim is struck out
  2. 2.Each party will bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act and Labour Relations Act (specific section 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, "Kenya Union of Domestic Workers, Hotels Educational Institutions, Hospital and Allied Workers (Kudheiha) v Cabinet Secretary, Ministry of Science and Technology & 2 others [2022] KEELRC 250 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Claim (Memorandum of Claim dated 5th November 2020, filed 17th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/250/eng@2022-03-31

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