Kenya Shipping, Clearing, Freight Logistics and Warehouses Workers Union v Bollore Transport and Logistics (K) Ltd; Kenya Aviation Workers Union (Interested Party) (Cause 229 of 2023) [2023] KEELRC 1790 (KLR)
The bottom line
#A Kenyan employment court struck out a union's recognition suit because the same dispute had already been decided, confirming you cannot relitigate lost cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the instant suit is res judicata in light of ELRC Cause No E253/2022
Yes. The exact issue — whether the respondent should recognize the claimant and terminate the agreement with the interested party — was litigated and determined in the earlier suit, and the claimant relied on facts that existed before that judgment.
The Court found the claimant's recognition demand of February 27, 2023 relied on material facts that were before, or ought to have been before, the Court in ELRC Cause No E253/2022, decided February 10, 2023 by Maureen Onyango J. The claimant, having been enjoined there and not appealed or sought review, could not relitigate. No new evidence of membership withdrawal was adduced. The suit was therefore an abuse of process and trapped by res judicata.
Whether the claimant can seek signing of a CBA/recognition agreement while the existing recognition agreement remains
No. The claimant cannot conclude a recognition agreement unless the prevailing recognition agreement has been revoked, and revocation is a matter for the National Labour Board, as per Matco Safaris.
The interested party submitted, citing Matco Safaris v Kenya Game Hunting & Safari Workers Union [2017] eKLR (Court of Appeal), that only the National Labour Board can revoke a recognition agreement. The earlier judgment in E253/2022 had likewise held that it is the National Labour Board, not an employer, that terminates a recognition agreement. The Court adopted that position and further noted a CBA between the respondent and interested party was registered on May 4, 2023, overtaking one prayer.
Legal principles established
#- Where the exact issue between the parties has been litigated and determined in a prior suit, a fresh suit relying on the same material facts is res judicata and an abuse of court process; the proper remedy is appeal or review, not a new suit
Court orders
#- 1.The suit and the application are struck out
- 2.Each party to bear own costs
- Jurisdiction invoked
- Sections 3 and 12 of the Employment and Labour Relations Court Act, 2011; Articles 36, 41 and 159(2)(c) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shipping, Clearing, Freight Logistics and Warehouses Workers Union v Bollore Transport and Logistics (K) Ltd; Kenya Aviation Workers Union (Interested Party) (Cause 229 of 2023) [2023] KEELRC 1790 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Notice of Motion dated March 15, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1790/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.