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ELRCOtherCause (number not stated in judgment); arising from Petition E020 of 2021 and C.M.E.L No. 123 of 2018· [2023] KEELRC 3063 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Allied Workers [KUDHEIHA] v University of Nairobi Council & another (Cause E502 of 2022) [2023] KEELRC 3063 (KLR)

Employment and Labour Relations Court
30 November 2023
JRJames Rika
642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court threw out Kudheiha's claim because the same dispute against the University of Nairobi had already been decided—unions must appeal, not refile.

What this practically means

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Executive summary

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The Claimant Union filed a Claim on 24th June 2021 on behalf of three members (Daniel Musyimi Muasya, Julius Owichi Owuor and Robert Kipkorir Chirchir), alleging unfair termination of their contracts and seeking reinstatement or compensation plus terminal benefits. The Respondent filed a Notice of Preliminary Objection dated 7th March 2023 grounded on res judicata, pointing to two prior judgments: Petition E020 of 2021 (Kudheiha v. University of Nairobi & Another) before the same Court, and Milimani C.M.E.L No. 123 of 2018 (Robert Kipkorir Kipng'etich v. University of Nairobi). The objection was canvassed by way of written submissions, confirmed filed and exchanged on 3rd October 2023. The Court held that the three Grievants were among the 140 members covered by the collective petition based on the CBA, in which the identical issues - non-renewal of fixed-term contracts and entitlement to permanent and pensionable terms - and the same primary prayer of reinstatement were raised and determined. The Claim was therefore found res judicata, at least with regard to Petition E020 of 2021. The Claimant's half-hearted submission seeking recusal of the Judge was rejected for want of any material or formal application. The Court directed the Claimant to pursue its appeal against the Petition judgment rather than file disparate individual claims. The Preliminary Objection was upheld and the Claim dismissed, with costs to the Respondent.

Key legal issues

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01

Res judicata

Holding

The Claim is res judicata, at least with regard to Petition E020 of 2021, the same parties and issues having been collectively litigated and determined

Reasoning

The Grievants were among 140 members covered by a collective petition founded on the CBA with the University. The Court in the Petition adjudicated all issues, including non-renewal of fixed-term contracts and permanency, and the same primary prayer of reinstatement is repeated here. The union is claiming under the same capacity as before, so the Claim is barred.

p. 2
02

Recusal

Holding

The prayer for recusal fails for want of material and a formal application

Reasoning

The Claimant merely 'respectfully sought' recusal in submissions without demonstrating any basis and without filing a formal application. The Court found the prayer half-hearted and unsupported by any material placed before it.

p. 2

Legal principles established

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  • A collective claim determined on behalf of union members bars subsequent disparate individual claims by the same union on the same dispute

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Claim is declined under the doctrine of res judicata, with costs to the Respondent

Authorities

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Legislation

  • Electronic Case Management Practice DirectionsPractice Direction 6[2] of 2020

Cases cited (2)

  • Kudheiha v. University of Nairobi & Another
    Petition Number E020 of 2021
  • Robert Kipkorir Kipng'etich v. University of Nairobi
    Milimani Commercial Courts C.M.E.L Number 123 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under its constituting statute (not expressly cited); ruling on a Notice of Preliminary Objection

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, "Kenya Union of Domestic, Hotels, Educational Institutions and Allied Workers [KUDHEIHA] v University of Nairobi Council & another (Cause E502 of 2022) [2023] KEELRC 3063 (KLR)", Case Analysis (2023). Cause (number not stated in judgment); arising from Petition E020 of 2021 and C.M.E.L No. 123 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3063/eng@2023-11-30

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