Githinji & 131 others v Kenya Medical Research Institute & 6 others (Cause 1545 of 2018) [2023] KEELRC 2767 (KLR)

The allowances claimed were the subject of a final judgment in Cause No. 1315 of 2013 (UNRISK v KEMRI) directing implementation of two SRC circulars, and of a consent agreement dated 4 February 2019. The Claimants, though not union members, paid agency fees and benefited from the union's litigation, thus litigating under the same title. The court applied section 7 of the Civil Procedure Act and the Supreme Court's decisions in KCB v Muiri Coffee Estate and John Florence Maritime, and adopted Radido J's reasoning in Okiya Omutatah Okoiti v KEMRI that enforcement, not re-litigation, was the proper course.

Section 49 of the Labour Relations Act permits agency fee deductions from unionisable employees covered by a collective agreement. The court reasoned that the fee is paid for collective bargaining work whose benefits flow to all unionisable employees; non-members cannot enjoy the benefits of the union's litigation while disclaiming its burdens. All claimants' witnesses admitted paying agency fees and benefiting from the union's successful negotiations.

Citing the Supreme Court in KCB v Muiri Coffee Estate and John Florence Maritime Services, the court restated that once legal rights are judicially determined, the edict stands conclusive; the doctrine applies to all categories including constitutional rights, accords a litigant only one bite at the cherry, and prevents multiplicity of suits.