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ELRCDismissedNot stated in excerpt· [2023] KEELRC 571 (KLR)

Long’olenyang v Public Service Commission & 2 others (Petition E106 of 2022) [2023] KEELRC 571 (KLR)

Employment and Labour Relations Court
2 March 2023
MNMATHEWS N. NDUMA
1,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a fresh set of facts means a new case — the earlier dismissal did not bar the employee's June 2022 petition.

What this practically means

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Executive summary

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The 1st respondent raised a preliminary objection dated July 13, 2022 arguing that the petition was res judicata and an abuse of process, because the petitioner had earlier filed Nairobi ELRC Petition No. E044 of 2020 on substantially the same grounds, which was dismissed by Maureen Onyango J on July 16, 2021 for lack of merit. The petitioner's appeal against that dismissal was pending before the Court of Appeal (Civil Application No. E433 of 2021), where a consent order maintaining the petitioner's Nairobi work station was issued. The 1st respondent contended that the only issue in the present petition - whether the petitioner's transfer violated the Constitution - had already been determined, and that the repeat litigation harassed the respondents and wasted judicial time and public resources. The petitioner countered that the objection was not a pure point of law, being founded on contested facts, and that the present petition arose from fresh happenings and violations in June 2022, distinct from the August 2020 events litigated in the former petition. Citing KCB v Benjoh Amalgamated on res judicata and Hassan Ali Joho (approving Mukhisa Biscuit) on preliminary objections, the court held that the objection was vague, did not meet the requirements of res judicata - identity of matter, parties, title, final determination and competence of the former court - and that the two petitions arose from clearly different sets of facts. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Res judicata

Holding

The objection failed because the present petition arose from different facts (June 2022) than the former petition (August 2020), and the requirements of res judicata were not met.

Reasoning

The court compared the two petitions and found that petition E044 of 2020 concerned the transfer letter of August 26, 2020, whereas the present petition arose from events in June 2022 - two distinct sets of facts. Additionally, the appeal from the former petition was still pending, so the former decision was not final. Res judicata requires identity of matter, parties, title and final determination by a competent court, none of which were established.

p. 3
02

Nature of a preliminary objection

Holding

The objection was premised on contested facts and was therefore not a pure point of law.

Reasoning

Relying on Mukhisa Biscuit as cited by the Supreme Court in Hassan Ali Joho, the petitioner argued, and the court accepted, that a preliminary objection must be a pure point of law on the assumption that all pleaded facts are correct. The court found the objection vague and unclear, and that it turned on ascertaining facts from the pleadings, so it could not stand as a proper preliminary objection.

p. 1

Legal principles established

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  • For res judicata to apply the issue must have been directly and substantially in issue, between the same parties litigating under the same title, heard and finally determined by a competent court
  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained

Court orders

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  1. 1.The Preliminary Objection dated July 13, 2022 is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Constitution of Kenya, 2010articles 27, 42 and 47

Cases cited (3)

  • KCB Limited v Benjoh Amalgamated Limited
    [2017] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 others
    Petition No. 12[13] of 2014 eKLR
  • Mukhisa Biscuit Manufacturers Limited v West End Distributors Limited
    [1969] EA 696
Jurisdiction invoked
Constitution of Kenya, 2010 (articles 27, 42 and 47 invoked in the former petition); Civil Procedure Act, section 7

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, "Long’olenyang v Public Service Commission & 2 others (Petition E106 of 2022) [2023] KEELRC 571 (KLR)", Case Analysis (2023). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/571/eng@2023-03-02

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