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ELRCOtherCause No E071 of 2023· [2023] KEELRC 3468 (KLR)

Hamisi v Modern Coast Express Limited (Cause E071 of 2023) [2023] KEELRC 3468 (KLR)

Employment and Labour Relations Court
19 December 2023
MMM. MBARŨ
1,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that once you formally withdraw a case, you can immediately file a fresh one on the same matter.

What this practically means

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Executive summary

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The respondent employer, Modern Coast Express Limited, filed a Notice of Preliminary Objection dated 4 September 2023 seeking dismissal of the claimant's suit on two grounds: that the claim was sub judice, there being a similar active case before the Chief Magistrate's Court (CMEL E130 of 2020, Mwazito Mohamed Hamisi v Modern Coast Express Limited) seeking similar orders over the same subject matter, and that the suit was frivolous, vexatious and an abuse of court process. The claimant, a former head of information technology whose employment was terminated in 2020, responded that the earlier Mombasa cause had been withdrawn by Notice of Withdrawal filed on 31 July 2023 for lack of jurisdiction, before the present claim was filed on 1 August 2023, and that the objections were not proper preliminary points of law under Mukisa Biscuit. The court framed twin issues: whether the claim was sub judice and whether it was an abuse of process. Applying section 6 of the Civil Procedure Act, the court held that sub judice requires a previously instituted suit still pending between the same parties over the same subject matter. Under Order 25 Rule 1, a notice of withdrawal takes effect and ends the proceedings; although it was unclear whether the withdrawal notice was served or contested, the withdrawn suit ceased to exist and could not sustain the objection. The claim filed after the withdrawal was therefore proper and not an abuse of process. The preliminary objections were dismissed, the claim to proceed to hearing on the merits, with costs to abide the outcome of the suit.

Key legal issues

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01

Whether the claim is sub judice under section 6 of the Civil Procedure Act

Holding

No - the earlier suit Mombasa CMEL E130 of 2020 was withdrawn on 31 July 2023, before the present claim was filed on 1 August 2023, so no suit was pending between the same parties over the same subject matter

Reasoning

Section 6 bars trial of a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit still pending. Order 25 Rule 1 allows a plaintiff wholly to discontinue a suit by notice, and such withdrawal brings the proceedings to an end. The court noted it was not clarified whether the Notice of Withdrawal was served or contested, but once withdrawn the earlier suit ceased to exist and cannot found a sub judice objection.

p. 3
02

Whether the claim constitutes an abuse of court process

Holding

No - since the earlier suit no longer existed, filing this claim was not an abuse of process

Reasoning

The abuse-of-process objection rested entirely on the alleged pendency of the earlier Mombasa claim. That claim had been withdrawn under Order 25 Rule 1 before the present suit was instituted. With the earlier proceedings at an end, the foundation of the abuse argument collapsed and the preliminary objections dated 4 September 2023 failed in their entirety.

p. 3

Legal principles established

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  • A notice of withdrawal of suit takes effect and brings the proceedings to an end as against the respondent, and a subsequent suit filed after such withdrawal is proper and not an abuse of court process

Court orders

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  1. 1.The Notice of Preliminary Objection dated 4 September 2023 is dismissed
  2. 2.The court will hear the claim on the merits
  3. 3.Costs shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure Act and the rules theretoOrder 25 Rule 1

Cases cited (4)

  • Joseph Muriithi Njeru v County Government of Kirinyaga
    [2020] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission and 16 others
    [2020] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd
    [1969] EA
  • Celine Wambui Kiai v National Bank of Kenya & 2 others
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction over employment disputes; Civil Procedure Act, section 6 (sub judice rule) and Order 25 Rule 1 (withdrawal of suit)

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, "Hamisi v Modern Coast Express Limited (Cause E071 of 2023) [2023] KEELRC 3468 (KLR)", Case Analysis (2023). Cause No E071 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3468/eng@2023-12-19

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