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ELRCDismissedNotice of Preliminary Objections dated 12 October 2023 in an ELRC claim filed 17 May 2023· [2023] KEELRC 3466 (KLR)

Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited (Cause E047 of 2023) [2023] KEELRC 3466 (KLR)

Employment and Labour Relations Court
7 December 2023
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a new claim for unpaid CBA dues is not barred by earlier litigation between the same parties, and the case proceeds to full hearing.

What this practically means

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Executive summary

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The respondent, Kenya Marine Contractors (EPZ) Limited, filed a Notice of Preliminary Objection dated 12 October 2023 seeking dismissal of a claim filed on 17 May 2023 by a trade union represented by its general secretary, Wyclifie Nyamwata. The respondent argued the suit was res judicata, having been substantively determined in ELRC Cause No.152 of 2012 (KEWU v KMC (EPZ) Ltd), including via a ruling of 22 April 2021 on an application dated 16 October 2017, and that a 2019 application raised identical issues; the suit was thus a vexatious abuse of process. The claimant countered that the 2012 cause concerned execution and CBA registration, that this suit is anchored on Section 59 of the Labour Relations Act, and that the CBA signed on 20 November 2020 (registered in ELRC CBA No. E107 of 2022 following a ruling of 7 December 2022) arose from long litigation including contempt proceedings. The claim seeks a declaration that the respondent's refusal to implement the registered CBA is unlawful, payment of Kshs. 34,344,144.11 in arrears and service gratuity, and interest from 1 August 2012. The single issue framed was whether the claim is barred by res judicata. The court, citing Section 7 of the Civil Procedure Act and the Court of Appeal's decision in IEBC v Maina Kiai, held the prior cause (terms and conditions of employment and CBA registration) was different and separate from this claim (failure to pay salary arrears and terminal dues after termination of 100 members). The 2019 application predated the CBA. The objections were dismissed with costs of Kshs. 50,000, and the claim will proceed to hearing on the merits.

Key legal issues

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01

Whether the claim is res judicata given the prior ELRC Cause No.152 of 2012 (KEWU v KMC (EPZ) Ltd) and related applications

Holding

No. The prior cause concerned terms and conditions of employment and registration of a CBA, whereas this suit concerns the respondent's failure to pay salary arrears and terminal dues under the CBA signed on 20 November 2020 after terminating 100 employees.

Reasoning

The court compared the subject matter of the 2012 cause (nine CBA issues, judgment of 23 May 2014 awarding wage increases) with the present claim for implementation of the CBA and terminal benefits of terminated members. Being different and separate causes of action between the same parties, the res judicata rule does not apply. The alleged application dated 24 July 2019 was not attached and predates the CBA signed on 20 November 2020.

p. 4
02

Whether the claim is a vexatious abuse of the court's process

Holding

No; the objections are themselves another attempt at delay and the claim will proceed on the merits.

Reasoning

Relying on the Court of Appeal's observations in Civil Application No.28 of 2015 about delaying conduct, the court found the objections to be yet another delay tactic and held the claim should be heard on the merits.

p. 4

Legal principles established

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  • Res judicata requires that the matter in the later suit be the same matter directly and substantially in issue in a former suit between the same parties that was heard and determined by a competent court.
  • A later suit founded on a different cause of action is not barred even where the parties are the same as in earlier litigation.

Court orders

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  1. 1.The notice of preliminary objections dated 12 October 2023 is found without merit and dismissed
  2. 2.The respondent shall pay the claimant costs assessed at Kshs. 50,000 within 14 days, failing which the same shall accrue interest at court rates until paid in full
  3. 3.The court will hear the claim on the merits

Authorities

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Legislation

  • Labour Relations ActSection 59
  • Labour Relations ActSection 62
  • Civil Procedure ActSection 7

Cases cited (2)

  • Abok James Odera v John Patrick Macharia
    Civil Application No.49 of 2001
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
Jurisdiction invoked
Article 162(2) Constitution / ELRC jurisdiction (claim under Section 59 of the Labour Relations Act, 2007)

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 Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited (Cause E047 of 2023) [2023] KEELRC 3466 (KLR)", Case Analysis (2023). Notice of Preliminary Objections dated 12 October 2023 in an ELRC claim filed 17 May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3466/eng@2023-12-07

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