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ELRCStruck OutNot stated in the judgment (ELRC Claim filed January 27, 2023)· [2023] KEELRC 678 (KLR)

Otieno v Multimedia University of Kenya & 2 others (Cause E049 of 2023) [2023] KEELRC 678 (KLR)

Employment and Labour Relations Court
16 March 2023
LNLinnet Ndolo
545 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, acting in person, filed a claim and Notice of Motion on January 27, 2023 before the Employment and Labour Relations Court at Nairobi, seeking declaratory, prohibitory and mandatory orders concerning his leave entitlement under the Respondent's leave forfeiture policy and accrued emoluments. The Respondents filed a notice of Preliminary Objection dated February 8, 2023, contending that the claim was res judicata because the same issues had been raised and determined in Nairobi ELRC Cause No 243 of 2020, Robert Kennedy Otieno v Multimedia University of Kenya & Council of Multimedia University of Kenya, in which Mbaru J delivered judgment on December 8, 2022. The court, Ndolo J, invoked Section 7 of the Civil Procedure Act and the Court of Appeal's restatement of the rationale of res judicata in John Florence Maritime Services Limited. Having examined the prior judgment, the court found that the leave entitlement issue had been exhaustively determined, and that the claim for accrued emoluments had also been before the court in the previous cause; an unsuccessful plea could not be resuscitated. The court held that all matters raised were res judicata on account of Cause No 243 of 2020 and struck out the present cause in its entirety, ordering each party to bear their own costs. Judgment was delivered virtually at Nairobi on March 16, 2023.

Key legal issues

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Whether the claim is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

Yes. The issues of leave entitlement and accrued emoluments were directly and substantially in issue in Nairobi ELRC Cause No 243 of 2020 between the same parties, which was heard and finally decided by Mbaru J on December 8, 2022. The entire cause was struck out.

Reasoning

The court applied Section 7 of the Civil Procedure Act, which bars trying a suit whose matter directly and substantially in issue was heard and finally decided in a former suit between the same parties litigating under the same title before a competent court. The court examined Mbaru J's judgment in Cause No 243 of 2020 and found the leave entitlement issue exhaustively determined. The accrued emoluments claim had also been pleaded in the previous cause; its failure there did not revive it. The only course open was to strike out the cause.

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Legal principles established

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  • A party whose plea on an issue was unsuccessful in a former suit cannot resuscitate that issue in a subsequent suit; the matter is res judicata between the same parties litigating under the same title
  • The appropriate remedy where a subsequent suit is res judicata is striking out of the suit

Court orders

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  1. 1.The present cause is struck out as res judicata on account of Cause No 243 of 2020
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Robert Kennedy Otieno v Multimedia University of Kenya & Council of Multimedia University of Kenya
    Nairobi ELRC Cause No 243 of 2020
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata)

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, "Otieno v Multimedia University of Kenya & 2 others (Cause E049 of 2023) [2023] KEELRC 678 (KLR)", Case Analysis (2023). Not stated in the judgment (ELRC Claim filed January 27, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/678/eng@2023-03-16

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