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ELRCStruck OutNot stated in the judgment (arising from execution in ELRC Cause No. 151 of 2017; related Misc. Application No. E058 of 2021)· [2022] KEELRC 1525 (KLR)

Pap Kalando Investments Limted v Kenya Hotels & Allied Workers Union & another (Miscellaneous Application E093 of 2021) [2022] KEELRC 1525 (KLR)

Employment and Labour Relations Court
16 June 2022
896 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kisumu struck out a business's injunction application because it duplicated an earlier pending case and hid that fact from the court.

What this practically means

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Executive summary

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By notice of motion dated 16th December 2021 under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 and Order 50 of the Civil Procedure Rules, the Objector/Applicant, operating Fabrice Lounge, sought to restrain the Respondents from laying distress against or interfering with its business establishment. The Applicant asserted that the goods distressed belonged to it and not to Barizi Bar and Restaurant, and that the decree holder in ELRC Cause No. 151 of 2017 was a stranger to it. The Respondents opposed, contending the application was intended to defeat the fruits of the employee's judgment and duplicated pending proceedings, being similar to Misc. Application No. E058 of 2021 and thus res sub judice. Justice Christine N. Baari framed a single issue: whether the application violated the sub judice rule. Relying on the Supreme Court's decision in KNCHR v Attorney General and Nyanza Garage v Attorney General, she held that the issues raised were directly and substantially in issue in the earlier, pending Misc. Application No. E058 of 2021, involving the same subject matter and parties, and that the Applicant had failed to disclose the earlier applications in its pleadings. The application was struck out with costs as an abuse of the court process. Judgment delivered at Kisumu on 16th June 2022 by video-link and in court.

Key legal issues

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01

Whether the application offended the sub judice rule

Holding

Yes; the issues raised were directly and substantially in issue in the earlier Misc. Application No. E058 of 2021, which the Applicant did not disclose in its pleadings.

Reasoning

The court found that the subject of the application - proclamation emanating from the judgment in ELRC Cause No. 151 of 2017 - was the same issue litigated in the earlier Misc. Application No. E058 of 2021. Applying the test in the KNCHR case, all elements of sub judice were met: same subject matter, same parties, earlier suit pending before a competent court. The Applicant's non-disclosure of the earlier application aggravated the position, rendering the motion an abuse of process.

p. 2
02

Consequence of offending the sub judice rule

Holding

The application was struck out with costs as an abuse of the court process.

Reasoning

The purpose of the sub judice rule is to prevent multiplicity of suits, avoid abuse of court process, and prevent courts of competent jurisdiction from issuing conflicting decisions over the same subject matter. Since the instant motion duplicated earlier proceedings, the court held it fell within what constitutes abuse of process and struck it off with costs.

p. 3

Legal principles established

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  • When two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed matter ought to be stayed pending determination of the earlier suit.
  • A party invoking res sub judice must establish more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives.
  • Filing multiple suits raising the same issues between the same parties without disclosing earlier applications constitutes abuse of court process justifying striking out.

Court orders

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  1. 1.The application is struck off with costs for offending the sub judice rule and constituting an abuse of the court process

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 5; Order 50 Rule 1

Cases cited (2)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    (2020) eKLR
  • Nyanza Garage v Attorney General
    HCCS No. 450 of 1993
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 5 and Order 50 Rule 1 of the Civil Procedure Rules

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, "Pap Kalando Investments Limted v Kenya Hotels & Allied Workers Union & another (Miscellaneous Application E093 of 2021) [2022] KEELRC 1525 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from execution in ELRC Cause No. 151 of 2017; related Misc. Application No. E058 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1525/eng@2022-06-16

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