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ELRCPartially AllowedNot stated in the judgment (references ELRC Cause No. E074 of 2022, ELRC No. E0505 of 2021 and ELRC No. E021 of 2023)· [2023] KEELRC 2690 (KLR)

Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E021 of 2023) [2023] KEELRC 2690 (KLR)

Employment and Labour Relations Court

30 October 2023

MMM. Mbarũ

1,357 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Kenya's Employment Court dismissed duplicate terminal dues claims as an abuse of process, but allowed two workers' claims filed within the three-year limitation period to proceed.

What this practically means

Executive summary

The court delivered a ruling on two interlocutory applications in a union claim for terminal dues (gratuity under a CBA). The respondent's application dated 28 August 2023 sought dismissal of the claim as an abuse of court process, on the ground that the claimant had already filed ELRC Cause No. E074 of 2022 on behalf of the same grievants. The claimant's application dated 2 October 2023 sought leave to amend the Memorandum of Claim to remove seven grievants said to have been erroneously included, leaving eight named grievants. The court found the claimant did not deny that ELRC Cause No. E074 of 2022 covered six of the grievants seeking similar orders for the same cause of action, and held that filing a fresh claim in those circumstances was sub judice and an abuse of court process, leading to duplicity and a multiplicity of suits. The claims for Fadhil Mohamed, Hussein Ambrose, Morris Mbeja, Paul Ogalo, Henry Wamugoya and William Nyongesa were dismissed. However, the claims for Francis Mwai and Felix Otieno, whose employment terminated in November 2020, were filed on 20 March 2023, within the three-year limitation period under Section 90 of the Employment Act, 2007; those claims were held properly before the court and shall proceed on the merits. The amendment application was declined, the respondent's application was allowed to that limited extent, and each party was ordered to bear its own costs.

Key legal issues

Abuse of court process by duplicating claims for the same grievants in two pending suits

Holding

The claims for six grievants already covered in ELRC Cause No. E074 of 2022 are sub judice, an abuse of court process, and are dismissed

Reasoning

The claimant did not deny filing ELRC Cause No. E074 of 2022 for the same grievants seeking similar orders for terminal dues for the same cause of action. Filing a fresh claim knowing of the earlier suit amounts to duplicity and multiplicity of suits, clogging the wheels of justice and adding to case backlog. Such claims cannot be cured by amendment and are dismissed.

p. 4

Limitation under Section 90 of the Employment Act, 2007

Holding

The claims for Francis Mwai and Felix Otieno, whose employment terminated in November 2020, were filed on 20 March 2023, within three years, and are properly before the court

Reasoning

The Memorandum of Claim pleaded that both grievants' employment terminated in November 2020. The period from November 2020 to the filing date on 20 March 2023 is less than the three years allowed by Section 90 of the Employment Act, 2007, so those two claims proceed on the merits.

p. 4

Legal principles established

Filing a new claim seeking similar orders under the same name and for the same cause of action while an earlier claim is pending is an abuse of court process
Parties should avoid a multiplicity of suits
Claims filed within three years of termination of employment comply with Section 90 of the Employment Act

Court orders

1.The claims for Fadhil Mohamed, Hussein Ambrose, Morris Mbeja, Paul Ogalo, Henry Wamugoya and William Nyongesa are dismissed as sub judice and an abuse of court process
2.The claims by Francis Mwai and Felix Otieno are proper and shall proceed on the merits
3.Application dated 28 August 2023 is allowed to the extent that the claimant shall prosecute the claims for Francis Mwai and Felix Otieno on the merits
4.Application dated 2 October 2023 (seeking leave to amend the Memorandum of Claim) is declined
5.Each party to bear own costs

Authorities

Legislation

Employment Act, 2007Section 90

Cases cited (1)

Stanley Koech & another v Charles Gibson Ombasa
[2022] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over labour relations disputes (Employment Act, 2007, Section 90 applied on limitation)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E021 of 2023) [2023] KEELRC 2690 (KLR)", Case Analysis (2023). Not stated in the judgment (references ELRC Cause No. E074 of 2022, ELRC No. E0505 of 2021 and ELRC No. E021 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2690/eng@2023-10-30

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