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ELRCDismissedApplication dated October 12, 2022 (ELRC Cause)· [2023] KEELRC 551 (KLR)

Nyanjui v Safari Park Hotel (Cause E735 of 2022) [2023] KEELRC 551 (KLR)

Employment and Labour Relations Court
28 February 2023
JRJames Rika
548 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent Hotel as a Barman from November 19, 1987 until his summary dismissal on February 11, 2003 on allegations of fraud, sought leave by an application dated October 12, 2022 to file his Claim out of time. He attributed the delay to a serious traffic accident in 2002 which left him bedridden, the burden of nursing his ailing wife, and the Respondent's denial of his terminal dues. The Respondent opposed through its Human Resource Manager, B Inoti, showing the Claimant was a serial litigant: RMCC No 2308 of 2003 on the same subject matter was dismissed with costs, RMCC No 12144 of 2004 was dismissed for lack of merit, and CMCC No 1265 of 2018, seeking leave to file out of time, was also dismissed. The Respondent urged that the present application was an abuse of the process of the Court. The Court, through written submissions, agreed. It held the dismissal occurred over 20 years earlier, well beyond the six years then allowed by the Limitation of Actions Act for contractual disputes, and that any excuse should have been raised on appeal rather than in successive fresh applications. Invoking res judicata, the Court warned the Claimant risks being declared a vexatious litigant. The Cause was struck out as an abuse of process, the file marked as closed, and no order was made on costs. Judgment delivered electronically at Nairobi on February 28, 2023 by James Rika, Judge.

Key legal issues

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01

Whether leave to file the claim out of time should issue

Holding

Leave refused; the dismissal occurred on February 11, 2003, beyond the 6-year limitation period for contractual disputes then applicable

Reasoning

The Claimant was summarily dismissed in 2003 and did not file within the six years allowed by the Limitation of Actions Act for contractual disputes. Whatever excuse existed should have been pursued on appeal from the prior failed actions, not by fresh applications. The Court found the application an abuse of process and struck out the Cause, closing the file with no order on costs.

p. 2
02

Abuse of process and res judicata

Holding

The Application, being the fourth attempt on the same subject matter after successive dismissals, constitutes an abuse of the process of the Court

Reasoning

The Respondent demonstrated the Claimant had litigated the same matter in RMCC No 2308 of 2003 (dismissed with costs), RMCC No 12144 of 2004 (dismissed) and CMCC No 1265 of 2018 (leave application dismissed). Instead of appealing, the Claimant filed fresh applications. The Court held this pestering violated res judicata and warned of a vexatious litigant declaration.

p. 2

Legal principles established

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  • A litigant cannot bring successive applications on the same subject matter after prior dismissals; the principle of res judicata bars repeated litigation, and persistence risks a declaration as a vexatious litigant

Court orders

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  1. 1.The Cause herein is in abuse of the process of the Court, and is struck out
  2. 2.This file shall be marked as closed
  3. 3.No order on the costs

Authorities

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Legislation

  • Limitation of Actions Act6-year limitation on contractual disputes
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (claim for leave to file claim out of time under the Limitation of Actions Act)

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, "Nyanjui v Safari Park Hotel (Cause E735 of 2022) [2023] KEELRC 551 (KLR)", Case Analysis (2023). Application dated October 12, 2022 (ELRC Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/551/eng@2023-02-28

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