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ELRCDismissedELRC Case No. E228 of 2021 (Notice of Motion dated 28th October 2024)· [2025] KEELRC 347 (KLR)

Gichuki v Glaxosmithkline Pharmaceuticals Kenya (Civil Application E228 of 2021) [2025] KEELRC 347 (KLR)

Employment and Labour Relations Court
13 February 2025
3,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a repeat bid to force GSK to deposit Kshs. 150 million security, ruling that identical applications already rejected cannot be refiled without new evidence.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th October 2024, brought under Sections 1A, 3 and 3A of the Civil Procedure Act and Order 39 Rules 1 and 2 of the Civil Procedure Rules, 2010, Pauline Wambui Gichuki, the claimant in ELRC Case No. E228 of 2021, sought an order compelling GlaxoSmithKline Pharmaceuticals Kenya Limited to furnish security for costs of Kshs. 150,000,000 in a joint interest-earning account pending the hearing and determination of the main suit. She contended that the Respondent was winding up its Kenyan operations, had transferred business to Laborex Kenya Limited and appointed Imperial FZE as distributor, and held no substantial assets in Kenya, exposing her to unenforceable cost orders. She also sought summons to the Respondent's officers and expedited hearing of the suit. The Respondent opposed, arguing the application was res judicata and sub judice, being the fifth similar application, that security for costs under Order 26 is unavailable to a claimant, that the quantum was speculative, and that its business adjustments were those of a going concern with no winding-up petition filed. The court framed three issues: sufficiency of grounds under Order 39 Rules 1 and 2, sub judice, and prejudice. It found on the record that a similar application had previously been filed and dismissed and that no evidence showed any change in circumstances since 2023. For that reason alone the court held the application res judicata, dismissed it, and awarded costs in the cause.

Key legal issues

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01

Whether the Notice of Motion dated 28th October 2024 is res judicata

Holding

The court found the application res judicata because a similar application on the same grounds had been dismissed in 2023 and the Applicant demonstrated no change in circumstances since then.

Reasoning

The court traced the history of prior applications by the Applicant, including the application dated 23rd March 2023 in the same suit seeking security for costs on identical allegations of winding up, which was dismissed. The court held that re-litigating the same issues without evidence of changed circumstances offends the doctrine of res judicata embodied in Section 7 of the Civil Procedure Act, and dismissed the application on that basis alone.

p. 8
02

Whether the Applicant satisfied the conditions of Order 39 Rules 1 and 2 for security for costs

Holding

The court did not reach a substantive determination on the Order 39 conditions, instead disposing of the application on res judicata grounds; it noted the application related to attachment before judgment and the Applicant's contention that the Respondents were about to leave the jurisdiction.

Reasoning

The court set out the text of Order 39 rules 1 and 2 and framed the Applicant's contention as one of attachment before judgment - that the Respondents were about to abscond or leave the jurisdiction or cease operating in Kenya, obstructing execution of any decree. However, having found a prior identical application dismissed and no evidence of changed circumstances, the court dismissed the application without making findings on the Order 39 threshold itself.

p. 7

Legal principles established

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  • A fresh application seeking the same orders on the same grounds as a previously dismissed application, without evidence of changed circumstances, is res judicata and must be dismissed.

Court orders

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  1. 1.The application dated 28th October 2024 is dismissed as res judicata.
  2. 2.Costs in the cause.
Jurisdiction invoked
Sections 1A, 3 and 3A of the Civil Procedure Act; Order 39 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Gichuki v Glaxosmithkline Pharmaceuticals Kenya (Civil Application E228 of 2021) [2025] KEELRC 347 (KLR)", Case Analysis (2025). ELRC Case No. E228 of 2021 (Notice of Motion dated 28th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/347/eng@2025-02-13

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