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ELRCOtherELRC Cause (Nakuru) – memorandum of claim dated 5th July 2018 (number not stated in judgment)· [2022] KEELRC 757 (KLR)

Kisirkoi v Maasai Mara University (Employment and Labour Relations Cause 143 of 2018) [2022] KEELRC 757 (KLR)

Employment and Labour Relations Court
21 February 2022
DNDAVID NDERITU
1,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employee who voluntarily withdrew his case against the Teachers Service Commission must pay the Commission's legal costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (David Nderitu, Judge) determines a single issue: who should bear the costs of an employment cause withdrawn by the Claimant. The Claimant had sued the Respondent, the Teachers Service Commission, seeking declarations that a notice of retirement varying his employment contract was unlawful, reinstatement or compensation, maximum compensation for wrongful termination under Section 49 of the Employment Act, and a certificate of service. The Respondent opposed the cause as res judicata, citing a Kericho ELRC Petition and a pending Court of Appeal appeal (Civil Appeal No. 255 of 2018), but interlocutory rulings by Mbaru J and Wasilwa J allowed the cause to proceed as the issues differed. At the hearing on 17th November 2021, the Claimant sought to withdraw the cause on the basis of the Court of Appeal judgment delivered 5th November 2021, contending it had rendered the cause moot. The court granted withdrawal but directed written submissions on costs. The court found no special circumstances to depart from the rule under Section 27 of the Civil Procedure Act that costs follow the event. It noted the Claimant knew of the parallel litigation, opposed stay and res judicata applications, delayed in notifying withdrawal, pursued an in personam rather than public-interest claim, and withdrew voluntarily. Costs were awarded to the Respondent as a public institution whose litigation burden falls on the taxpayer.

Key legal issues

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Whether each party should bear own costs upon withdrawal of a cause or whether costs should follow the event

Holding

The general rule that costs follow the event applied; no special circumstances warranted an each-party-bears-own-costs order

Reasoning

Section 27 of the Civil Procedure Act gives the court discretion on costs anchored on the general rule that costs follow the event, while Order 25(2) of the Civil Procedure Rules permits withdrawal on terms as to costs. The court found the Claimant filed the cause knowing similar issues were on appeal, opposed res judicata and stay applications, delayed notice of withdrawal, and pursued a personal, non-public-interest claim; hence no unique circumstances justified departing from the general rule.

p. 4

Legal principles established

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  • Costs of an action follow the event unless the court for good reason otherwise orders, and a party who withdraws a cause on his own volition without demonstrating good faith should meet the costs

Court orders

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  1. 1.Respondent awarded costs of the withdrawn cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 27(1)
  • Civil Procedure RulesOrder 25(2)
  • Employment ActSections 49(1)(c) and 51

Cases cited (4)

  • Rufus Njuguna Miringu & Another Vs Martha Muriithi & Another
    (2012) eKLR
  • Jasbin Singh Rai & 30 others Vs Tarlodian Singh Rai & 4 others
    (2012) eKLR
  • Pacis Insurance Company Ltd Vs Francis Njeru Njoka
    (2018) eKLR
  • Samson K.A. Tim Vs D. M. Machage
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Civil Procedure Act (Cap 21), Section 27

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, "Kisirkoi v Maasai Mara University (Employment and Labour Relations Cause 143 of 2018) [2022] KEELRC 757 (KLR)", Case Analysis (2022). ELRC Cause (Nakuru) – memorandum of claim dated 5th July 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/757/eng@2022-02-21

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