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ELRCPartially AllowedPetition (ELRC) — Nakuru (number not stated in judgment)· [2022] KEELRC 917 (KLR)

Darren Mutinda v Kisii University, Kisii University Council, Fredrick Wanyama, C.S. Mninistry of Education & Attorney General [2022] KEELRC 917 (KLR)

Employment and Labour Relations Court
3 February 2022
OMONESMUS N. MAKAU
1,804 words in judgment
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The bottom line

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Kenya's Employment Court ruled you cannot file a second case over the same dispute already before another court; the later case gets stayed, with 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 (Makau, J) determined a preliminary objection dated 2 December 2021 by the 3rd respondent, Prof Fredrick Wanyama, seeking to strike out the petitioner's petition as sub judice and an abuse of process. The objection rested on four related suits concerning the renewal of the 3rd respondent's contract as Deputy Vice-Chancellor (Academic, Research and Student Affairs) of Kisii University, approved by the Council on 27 September 2021: Kisumu ELRC JR E013 and E015 of 2021 (Ogato), Eldoret ELRC JR E004 of 2021 (Bitok) and Kisumu Civil Appeal No. 216 of 2021. The petitioner acknowledged these suits but argued the parties differed and that the dismissal of Kisumu JR E015 of 2021 (judgment rendered at the leave stage) was no final judgment for res judicata. Framing three issues (sub judice, res judicata, abuse of process), the court applied the Supreme Court's statement of the sub judice rule in Kenya National Commission on Human Rights v Attorney General and held that the petition raised the same subject matter as the earlier-filed Eldoret and Kisumu appeal matters, and that since all litigants acted in the public interest the parties were essentially the same. Upholding the objection, the court declined to strike out the petition but stayed it pending determination of Eldoret ELRC JR E004 of 2021, clarified that conservatory orders granted on 30 November 2021 had lapsed automatically on 8 December 2021, and awarded costs of the objection to the 3rd respondent.

Key legal issues

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01

Whether the petition is sub judice given the other pending suits

Holding

The petition is sub judice vis-à-vis Eldoret ELRC JR E004 of 2021 and Kisumu CA No. 216 of 2021, which were filed earlier and raise the same subject matter

Reasoning

The court applied the Supreme Court's formulation of the sub judice rule from the Kenya National Commission on Human Rights case. It found no dispute that there is more than one suit pending, that Eldoret ELRC JR E004 of 2021 seeks the same reliefs (certiorari to quash the council's approval of the 3rd respondent's contract renewal), and that the earlier suits were filed before the petition. Although the parties differ on paper, all litigants sue in the public interest, so the parties are essentially the same. The court therefore upheld the objection.

p. 3
02

Whether the suit is res judicata / an abuse of process

Holding

Not necessary to decide; the finding of sub judice renders the abuse-of-process question academic

Reasoning

Having found the petition sub judice, the court declined to determine res judicata or abuse of process separately, observing the answer was obvious in light of the sub judice finding. The petitioner's argument that Kisumu ELRC JR E015 of 2021 was not a final judgment (judgment having been rendered at the leave stage) was therefore not determined.

p. 3

Legal principles established

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  • Where a petition is sub judice, it should not take precedence over suits filed earlier; the later suit ought to be stayed pending determination of the earlier suit
  • In public interest litigation, the requirement that suits be between the same parties is relaxed because litigants sue under the banner of public interest and are essentially the same

Court orders

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  1. 1.The preliminary objection by the 3rd respondent is upheld on the ground that the petition is sub judice
  2. 2.The petition is stayed pending the hearing and determination of Eldoret ELRC JR E004 of 2021 (instead of being struck out)
  3. 3.The conservatory orders granted on 30.11.2021 were never extended on 8.12.2021 and lapsed automatically on that day
  4. 4.The petitioner is condemned to pay the costs of the preliminary objection to the 3rd respondent

Authorities

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Legislation

  • Universities Actsection 35
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Thiba Mini-Hydro Co. Ltd v Josphat Karu Ndwiga
    [2020] eKLR
  • Kenya Bankers Association v Kenya Revenue Authority
    [2021] eKLR
  • Nyanza Garage v Attorney General & others
    [2016] UGHCEBD (18 November 2016)
  • Kenya National Commission of Human Rights v Attorney General & others
    [2020] eKLR
  • John Florence Maritime Services Ltd v Cabinet Secretary, Transport and Infrastructure and 3 others
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Constitution (petition concerning appointment/renewal of a Deputy Vice-Chancellor of Kisii University)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Darren Mutinda v Kisii University, Kisii University Council, Fredrick Wanyama, C.S. Mninistry of Education & Attorney General [2022] KEELRC 917 (KLR)", Case Analysis (2022). Petition (ELRC) — Nakuru (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/917/eng@2022-02-03

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