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ELRCDismissedPetition dated 5th January 2022 (Application dated 25th January 2022)· [2022] KEELRC 1177 (KLR)

Kenya Union of Journalist v Cabinet Secretary Labour and Social Broadcasting Corporation & 3 others; Simani & 54 others (Interested Party) (Petition E002 of 2022) [2022] KEELRC 1177 (KLR)

Employment and Labour Relations Court
19 July 2022
JGJacob Gakeri
3,605 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to throw out a union's challenge to a mandatory 2% agency fee deduction, ruling the earlier case dealt with a different issue.

What this practically means

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Executive summary

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The 2nd and 3rd Respondents applied by Notice of Motion dated 25th January 2022 to strike out the Petitioner's petition and Notice of Motion dated 5th January 2022, contending that the petition was res judicata. They argued that the Petitioner had previously filed Industrial Cause No. 1142 of 2014, which was dismissed on 27th November 2018, seeking recognition as the union with a simple majority and nullification of the recognition agreement; that non-disclosure of this rendered the petition an abuse of process; and that an agency-fee order under section 49(1) of the Labour Relations Act could only be contested in the absence of a registered CBA if a subsisting CBA existed. The Petitioner, through its Secretary-General, countered that the current petition concerns the constitutionality of the 1st Respondent's order, via Legal Notice 146 of 2021, mandating the 2nd Respondent to deduct 2% of employees' salaries and remit them to the 3rd Respondent - issues never previously litigated - and that the former suit concerned only recognition, a continuous administrative process. The court framed two issues: whether the application met the threshold for striking out on grounds of res judicata, and whether the applicant was entitled to the orders sought. Reviewing section 7 of the Civil Procedure Act and extensive authority, the court held that the elements of res judicata are conjunctive: although the same parties featured in Cause No. 1142 of 2014, the pith and substance of that cause was recognition, whereas the petition concerns Legal Notice 146 of 2021, which was not litigated before; further, no judgment or order showed the former suit was heard and finally determined on the merit. The application was dismissed with no orders as to costs, and the petition and Notice of Motion were directed to be heard on the merit.

Key legal issues

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01

Whether the petition is res judicata in light of Industrial Cause No. 1142 of 2014

Holding

The petition is not res judicata as the subject matter (Legal Notice 146 of 2021 on agency fee deduction) was not in issue in the former suit

Reasoning

Although Cause No. 1142 of 2014 involved the same parties, its pith and substance was recognition of the petitioner and negotiation of a CBA. Legal Notice 146 of 2021 mandating 2% deduction of agency fees was not part of that cause, and all reliefs in the petition relate to that Notice. Further, the applicant did not show the former suit was dismissed by a final judgment on the merit, and the elements are conjunctive.

p. 7
02

Whether the application for striking out should succeed

Holding

Dismissed; the petition to be heard on the merit

Reasoning

Striking out is warranted only where res judicata is established. Since the conjunctive elements failed, the application dated 25th January 2022 was dismissed and the Notice of Motion and Petition ordered to proceed to full hearing.

p. 8

Legal principles established

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  • The elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively, not disjunctively
  • For res judicata, the former judgment must be final, on merit, rendered by a court of competent jurisdiction, and between identical parties, subject matter and cause of action

Court orders

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  1. 1.The Application dated 25th January 2022 is dismissed with no orders as to costs
  2. 2.The Notice of Motion and the Petition shall be heard and determined on merit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Labour Relations Act (referred to as Labour Relations Court Act in the judgment)Section 49(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Legal Notice No. 146Kenya Gazette Vol CXXXIII - No. 168 of 20th August 2021

Cases cited (9)

  • Union of Kenya Civil Servants v Kenya Medical Research Institute and Union of Natural Research Institutes Staff of Kenya
    ELRC Cause no. E367 of 2020
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd
    [2017] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others
    [2021] eKLR
  • Henderson Vs Henderson
    (1843-60) ALL E.R.378
  • Judicial Service Commission v Sheikh Abubakar & another
    (2019) eKLR
  • Kenya Commercial Bank Ltd v Muiri Coffee Estates Ltd & another
    (2018) eKLR
  • Hosea Sitienei v University of Eldoret & 2 others
    (2018) eKLR
  • Joseph Tama Ndua & 10 others v Jacaranda (Msa) Ltd t/a Jacaranda Indian Ocean Beach Resort
    (2019) eKLR
  • Independent Electoral & Boundaries Commission V Maina Kiai & 5 others
    (2017) eKLR
Jurisdiction invoked
Article 48 of the Constitution; Employment and Labour Relations Court jurisdiction over employment and labour relations disputes

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 Journalist v Cabinet Secretary Labour and Social Broadcasting Corporation & 3 others; Simani & 54 others (Interested Party) (Petition E002 of 2022) [2022] KEELRC 1177 (KLR)", Case Analysis (2022). Petition dated 5th January 2022 (Application dated 25th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1177/eng@2022-07-19

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