Opande v Liverpool Voluntary Counseling & Testing (Cause E037 of 2022) [2023] KEELRC 1626 (KLR)
The bottom line
#A Kenyan court ruled that a claim dismissed from a magistrates' court for lack of jurisdiction can be refiled in the right court without being blocked.
What this practically means
#Executive summary
#Key legal issues
#Whether the instant suit violates the sub-judice rule (Section 6, Civil Procedure Act)
It does not, because the earlier suit was pending before a court without pecuniary jurisdiction
Applying Section 6 and the four conditions in the KNCHR case, the court held that both suits involve the same parties, cause of action and reliefs, but competence of the court in which the earlier suit is pending is a prerequisite. Since the magistrates' court lacked pecuniary jurisdiction over Cause No 427 of 2019, the rule was not engaged.
Whether the suit is res judicata (Section 7, Civil Procedure Act)
It is not, because the former court was not competent to try the subsequent suit
Relying on Section 7 and the elements in IEBC v Maina Kiai, the court noted that the former suit must have been heard and finally determined by a court competent to try the subsequent suit. The lower court lacked pecuniary jurisdiction, so even if the earlier suit was dismissed, the res judicata bar cannot apply.
Legal principles established
#- A suit only offends the sub-judice rule where the concurrent suits are before courts with competent jurisdiction
- Dismissal of a suit for want of pecuniary jurisdiction does not bar a fresh suit in a court with competent jurisdiction
Court orders
#- 1.The Respondent's preliminary objection dated February 22, 2023 is dismissed
- 2.Costs of the preliminary objection to the Claimant
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim previously before the magistrates' court in Kisumu CMELRC Cause No 427 of 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Opande v Liverpool Voluntary Counseling & Testing (Cause E037 of 2022) [2023] KEELRC 1626 (KLR)", Case Analysis (2023). Cause No E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1626/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.