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ELRCDismissedNairobi ELRC Cause No. E586 of 2022· [2023] KEELRC 3445 (KLR)

Otieno & another v East African Center for Human Rights (EACHRIGHTS) (Cause E586 of 2022) [2023] KEELRC 3445 (KLR)

Employment and Labour Relations Court
21 November 2023
NMNzioki Wa Makau
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that withdrawing a suit requires no court order, so a withdrawn case cannot block a later claim as sub judice.

What this practically means

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Executive summary

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The Respondent, The East African Center for Human Rights, filed a Notice of Preliminary Objection dated 20th September 2022 seeking the striking out of the Claimants' Statement of Claim dated 15th August 2022 in Nairobi ELRC Cause No. E586 of 2022, contending that the Court lacked jurisdiction because a prior suit between the same parties, Petition No. E136 of 2022, was still pending, rendering the Claim sub judice and an abuse of court process. The Claimants countered that jurisdiction vested under Article 162(2), 165(5) of the Constitution and section 12 of the ELRC Act; that the two files had been consolidated; and that they had withdrawn the Petition on 5th July 2023 following directions by Nduma J., leaving the Claim as their only active case. The Respondent insisted that the withdrawal was ineffective absent a court order and costs, relying on Shadrack Silla Muthama v Kebaso Wycliffe Maengwe. The Claimants relied on Kenya National Commission on Human Rights v Attorney General on the sub judice factors. The Court held that sub judice means a matter is under consideration by a judge, and a withdrawn matter is not; it found the Respondent had mischievously failed to disclose the notice of withdrawal and held that parties need neither leave of court nor a court order to withdraw a suit. The prior suit having been withdrawn, sub judice could not apply. The preliminary objection was dismissed with costs to the Claimants.

Key legal issues

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01

Whether the Claim in Cause No. E586 of 2022 was sub judice given the pendency of Petition No. E136 of 2022

Holding

The preliminary objection failed because the Petition had been withdrawn by notice filed on 5th July 2023, leaving no pending suit between the parties

Reasoning

Sub judice requires two or more pending suits between the same parties over the same subject matter. The Claimants had filed a notice of withdrawal of the earlier Petition, which the Respondent had not disclosed to the Court. Under Kenyan law, withdrawal requires neither leave of court nor a court order to take effect, even if the respondent has filed documents and costs remain to be settled. A withdrawn matter is no longer 'under a judge', so the sub judice principle could not oust the Court's jurisdiction over the present Claim.

p. 5
02

Whether the Claim constituted an abuse of court process

Holding

The objection on abuse of process fell with the sub judice ground once the Petition was withdrawn

Reasoning

The Respondent premised both the sub judice and abuse-of-process objections on the continued existence of Petition No. E136 of 2022. Since the Court found that the notice of withdrawal was effective without a court order, there was no parallel proceeding being pursued. The Court further found the Respondent had mischievously failed to disclose the withdrawal, undermining the bona fides of the objection, which it characterized as a waste of judicial time and dismissed with costs.

p. 5

Legal principles established

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  • A party does not need leave of court to withdraw a suit, and a notice of withdrawal does not require a court order to take effect
  • Once the earlier suit is withdrawn, the sub judice doctrine cannot sustain a preliminary objection against the later suit

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 20th September 2022 is dismissed
  2. 2.Costs of the preliminary objection to the Claimants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 165(5)
  • Employment and Labour Relations Court Act, 2011section 12
  • Civil Procedure Act Cap 21section 6
  • Civil Procedure Act Cap 21sections 1A, 1B, 3A, 27(1)
  • Civil Procedure Rules, 2010Order 2, rule 15(1)(d)

Cases cited (6)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd
    [2021] eKLR
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR
  • Kenya National Commission of Human Rights v Attorney General & others
    [2020] eKLR
  • Shadrack Silla Muthama v Kebaso Wycliffe Maengwe
    [2021] eKLR
  • Delilah Kerubo Otiso v Ramesh Chander Ndingra
    [2018] eKLR
Jurisdiction invoked
Article 162(2) and 165(5) of the Constitution of Kenya; section 12 of the Employment and Labour Relations Court Act, 2011

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, "Otieno & another v East African Center for Human Rights (EACHRIGHTS) (Cause E586 of 2022) [2023] KEELRC 3445 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. E586 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3445/eng@2023-11-21

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