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ELRCOtherELRC Cause (Notice of Motion dated 29th August 2023) – suit filed with Memorandum of Claim of even date· [2023] KEELRC 3368 (KLR)

Universities Academic Staff Union v University of Nairobi; Ouma (Interested Party) (Cause E700 of 2023) [2023] KEELRC 3368 (KLR)

Employment and Labour Relations Court
19 December 2023
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court paused a university union's case because the same job-creation dispute was already pending in another court case.

What this practically means

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Executive summary

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This is a ruling by Linnet Ndolo J of the Employment and Labour Relations Court at Nairobi, delivered virtually on 19th December 2023, on the Claimant Union's Notice of Motion dated 29th August 2023 seeking to stay implementation of a directive by the Chairperson of the University of Nairobi Council (letter dated 24th July 2023) affirming that the Interested Party would continue to hold office as Acting Chief Operations Officer with acting allowances. The matter had previously been before Dr. Gakeri J, who recused himself on 26th September 2023. The Union contended that the Chairperson had no power to appoint staff or extend acting appointments indefinitely, that the office of Chief Operations Officer was created unlawfully in July 2021 as a transitional six-month acting role pending alignment of statutory instruments, that no Statute creating the position had been promulgated, and that the arrangement contravened Sections 27 and 34 of the Public Service Commission Act. The Respondent and the Interested Party opposed the application, raising sub judice, abuse of process, locus standi, and illegally obtained evidence. The Respondent showed that the legality of the Chief Operations Officer position was already in issue in ELRC Petition No E118 of 2021, stayed by the Court of Appeal pending Civil Appeal No E771 of 2021. Holding that the real issue in controversy was the creation of that office, the Court found the claim sub judice and withheld further action pending determination of the petition, making no order for costs at this stage. Note: the document is a ruling on an interlocutory application rather than a final judgment disposing of the claim.

Key legal issues

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01

Whether the suit is sub judice in light of ELRC Petition No E118 of 2021

Holding

The suit is sub judice because the real issue in controversy – creation of the office of Chief Operations Officer – is the same issue in the pending petition

Reasoning

The Court examined the pleadings and found that although the Claimant framed its case as a challenge to the Chairperson's letter of 24th July 2023 extending the Interested Party's acting tenure, the underlying question was the legality of the creation of the office of Chief Operations Officer, the very issue in Petition No E118 of 2021, which was stayed by the Court of Appeal pending Civil Appeal No E771 of 2021. The Claimant's attempt to distinguish the two matters failed, particularly as it adduced no evidence that the decision to create the position had been abandoned.

p. 5
02

Scope of the sub judice doctrine

Holding

The entire subject matter in controversy in the subsequent suit must have been covered by the previously instituted suit, per Barclays Bank of Kenya Ltd v Elizabeth Agidza (relied on by the Claimant); the Supreme Court formulation in KNCHR v AG was relied on by the Respondent

Reasoning

The Court considered the competing authorities cited by the parties on the meaning and purpose of the sub judice rule. It found the Respondent's authority from the Supreme Court apt, and on application of the principle to the pleadings, concluded that the same subject matter was before the Court in the earlier petition, warranting withholding of further action rather than determination of the interlocutory application.

p. 5

Legal principles established

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  • The purpose of the sub judice rule is to prevent multiplicity of suits between the same parties over the same subject matter and avoid conflicting decisions by courts of competent jurisdiction

Court orders

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  1. 1.The Court withheld any further action on the matter pending final determination of ELRC Petition No E118 of 2021
  2. 2.No order for costs at this stage

Authorities

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Legislation

  • Public Service Commission ActSection 27
  • Public Service Commission ActSection 34
  • Public Service Commission Guidelines for Development and Review of Human Resource Management Instruments for State Corporations and Public Universitiesnot specified

Cases cited (2)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • Barclays Bank of Kenya Ltd v Elizabeth Agidza & 2 others
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (not expressly cited in the ruling); matter previously before Dr. Gakeri J who recused himself

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, "Universities Academic Staff Union v University of Nairobi; Ouma (Interested Party) (Cause E700 of 2023) [2023] KEELRC 3368 (KLR)", Case Analysis (2023). ELRC Cause (Notice of Motion dated 29th August 2023) – suit filed with Memorandum of Claim of even date. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3368/eng@2023-12-19

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