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ELRCDismissedPetition No. E007 of 2023 referred to; instant petition number not stated in the ruling· [2024] KEELRC 2430 (KLR)

Ngunju & 16 others v Kenya Forest Service & another (Petition E003 of 2024) [2024] KEELRC 2430 (KLR)

Employment and Labour Relations Court
4 October 2024
OMONESMUS N MAKAU
629 words in judgment
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The bottom line

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Kenya's Employment Court in Nyeri ruled that a petition struck out for poor drafting can be filed again, because res judicata only applies after a full hearing.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Makau J) on the respondents' notice of preliminary objection dated 9th February 2024, contending that the petition was res judicata because the court had previously delivered judgment in Petition No. E007 of 2023 filed by the same petitioners on the same subject matter. The respondents filed a replying affidavit but failed to annex the earlier pleadings and judgment, though they relied on that judgment in their submissions. Both sides filed written submissions. The sole issue framed was whether the petition was res judicata with respect to Petition No. E007 of 2023. The court set out section 7 of the Civil Procedure Act and the Black's Law Dictionary definition of res judicata, noting the three essentials: an earlier decision on the issue, a final judgment on the merits, and the same parties or their privies. Comparing the pleadings, the court accepted that the same parties and subject matter featured in both petitions. However, it found that the earlier judgment did not determine the dispute on the merits, having merely struck out the petition for failure to meet the Anarita Karimi Njeru threshold for constitutional petitions. Relying on the Supreme Court's decision in John Florence Maritime Services, the court held that because the subject matter was not determined on the merits, the instant petition was not res judicata. The preliminary objection was dismissed with costs on 4th October 2024, delivery having been via Teams with the parties' consent.

Key legal issues

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01

Whether the petition is barred by res judicata under section 7 of the Civil Procedure Act given the prior judgment in Petition No. E007 of 2023

Holding

The petition is not res judicata because the earlier petition was struck out on threshold grounds, not decided on the merits.

Reasoning

The court compared the pleadings in both petitions and found the same parties and subject matter. However, applying the three essentials of res judicata, including a final judgment on the merits, the court noted that the earlier judgment merely struck out the petition for failure to meet the Anarita Karimi Njeru threshold for constitutional petitions. Since no rights were determined on the merits, the doctrine did not apply.

p. 2

Legal principles established

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  • A petition struck out for failure to meet the Anarita Karimi Njeru constitutional threshold was not heard and finally decided on the merits, so a subsequent petition on the same subject matter is not res judicata.

Court orders

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  1. 1.Dismissed the respondents' preliminary objection dated 9th February 2024
  2. 2.Awarded costs of the objection to the petitioners

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others
    (2021) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the ELRC; ruling on preliminary objection under section 7 of the Civil Procedure Act

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, "Ngunju & 16 others v Kenya Forest Service & another (Petition E003 of 2024) [2024] KEELRC 2430 (KLR)", Case Analysis (2024). Petition No. E007 of 2023 referred to; instant petition number not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2430/eng@2024-10-04

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