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ELRCDismissedELRC Cause No E093 of 2022 (placed together with ELRC Petition No E019 of 2022)· [2023] KEELRC 1721 (KLR)

Mwaro v Judicial Service Commission & 3 others (Cause E093 of 2022) [2023] KEELRC 1721 (KLR)

Employment and Labour Relations Court
29 June 2023
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa dismissed a worker's second lawsuit over the same dismissal because his earlier case on the same issue was still pending.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ, Judge) determines a Notice of Preliminary Objection dated 18 April 2023 filed by the respondents in ELRC Cause No E093 of 2022, a file placed together with ELRC Petition No E019 of 2022 involving the same parties. The claimant, acting in person, sought reinstatement following his suspension, disciplinary hearing and summary dismissal, and had also filed an application seeking stay of these proceedings so that his earlier petition could be heard first. The respondents objected that the claim was sub judice contrary to Section 6 of the Civil Procedure Act, that the court lacked jurisdiction, and that the suit was an abuse of court process. The court applied the Mukhisa Biscuit definition of a preliminary objection and found the sub judice objection to be a pure point of law properly determined first. Noting the claimant's admission that he had filed both suits over the same subject matter between the same parties - the petition having been filed first on 30 November 2022 and remaining pending - and that he had previously filed and withdrawn ELRC Cause No 097 of 2021, the court held that this later cause offended Section 6 and constituted abuse of judicial process. It held the defect could not be cured by a stay of proceedings. The court dismissed the suit with costs to the respondents.

Key legal issues

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01

Whether the suit offends the sub judice rule under Section 6 of the Civil Procedure Act

Holding

The suit is sub judice because it duplicates the earlier, still-pending ELRC Petition No E019 of 2022 between the same parties over the same subject matter (suspension, disciplinary process, summary dismissal and reinstatement); the claimant, though acting in person, cannot be excused from the violation

Reasoning

The court applied Section 6 of the Civil Procedure Act, which bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title. The claimant admitted filing both suits. Proceeding with both risks duplication or conflict of reliefs, and if one is determined the other would be res judicata. The earlier petition was filed first and remains pending.

p. 4
02

Whether the claim constitutes abuse of court process

Holding

Yes. Filing multiple suits over the same matter is pursuing the same matter by two court processes, a gamble to get the best in the judicial process, wanting in bona fides, frivolous, vexatious and oppressive

Reasoning

Relying on Ephraim Miano Thamaini v Nancy Wanjiru Wangai and Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd, the court held that using the judicial process to the irritation of an opponent and to the detriment of efficient administration of justice is abuse. The claimant filed Cause No 097 of 2021 (withdrawn), Petition No E019 of 2022 (pending), and this cause, all over the same dismissal; one of the duplicating suits had to give way to avoid conflicting orders.

p. 4
03

The nature and priority of a preliminary objection

Holding

A preliminary objection raising a pure point of law capable of disposing of the suit should be heard first, per Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd

Reasoning

The court adopted the celebrated definition that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or judicial discretion exercised. The sub judice point qualified as such a pure point of law and was therefore determined first.

p. 3

Legal principles established

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  • A party cannot pursue the same subject matter between the same parties in two suits; a later suit that duplicates a pending earlier suit is sub judice and an abuse of court process and cannot be cured by a stay of proceedings
  • The sub judice rule under Section 6 of the Civil Procedure Act applies mutatis mutandis in the ELRC

Court orders

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  1. 1.The Notice of Preliminary Objections dated 18 April 2023 is found with merit
  2. 2.The claim/suit is dismissed for being sub judice and an abuse of court process
  3. 3.Costs of the suit awarded to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Judicial Service ActRegulation 25(2) of the Third Schedule

Cases cited (7)

  • Francis Kimutai Bii v Kaisungu (K) Limited
    [2016] eKLR
  • Michael Adib Azzam v Zakhem Construction (K) Limited
    [2022] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties)
    [2020] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others ex parte Law Society of Kenya
    [2020] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No 25 of 2002 (2009) eKLR 229
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; objections grounded on Section 6 of the Civil Procedure 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, "Mwaro v Judicial Service Commission & 3 others (Cause E093 of 2022) [2023] KEELRC 1721 (KLR)", Case Analysis (2023). ELRC Cause No E093 of 2022 (placed together with ELRC Petition No E019 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1721/eng@2023-06-29

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