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ELRCAllowedELR Appeal from Makueni ELR Cause No. E006 of 2021 (ruling of 28.09.2022)

Muli (Suing as the legal representative to the Estate of Benedict Muli Kasukali) v Kitundu Day & Boarding (Appeal E006 of 2022) [2025] KEELRC 715 (KLR)

Employment and Labour Relations Court
7 March 2025
BOBYRAM ONGAYA
1,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a worker's case shouldn't be struck out over fixable paperwork mistakes when an earlier duplicate suit had been withdrawn.

What this practically means

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Executive summary

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The appellant appealed against the ruling of Hon. G. Sagero, Senior Resident Magistrate, delivered on 28.09.2022 in ELR Cause No. E006 of 2021, striking out his memorandum of claim against the respondent on a preliminary objection and application that the suit was sub judice, being the same claim as Milimani CMELR Case No. 609 of 2019 between the same parties. The trial Court had found that although a notice to withdraw the Milimani suit dated 04.08.2020 was exhibited, no receipt or court order perfected the withdrawal, so the Makueni suit remained trapped by section 6 of the Civil Procedure Act; it also found the proper course upon the claimant's death was substitution under Order 24 rule 3(1), and that the appellant failed to plead the existence of the earlier suit. The appellant argued under Article 159(2)(d) that the objections were technical, that Order 25 rule 2(2) deficiencies were curable, and that non-disclosure was an excusable mistake. The respondent did not file submissions, having ceased to act. Allowing the appeal, the Court held the Milimani suit was clearly for withdrawal, the imperfections were curable, the non-pleading was curable or sufficiently disclosed, and any prejudice was mitigable by costs. Striking out was therefore drastic and denied the appellant access to justice. The ruling and consequential processes were set aside, each party was to bear own costs of the appeal, and the file was to be returned to the Machakos Sub-Registry.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the withdrawal of the Milimani CMELR Case No. 609 of 2019 was valid despite absence of a court order or filing receipt
  2. 2.Whether striking out the Makueni suit as res sub judice under section 6 of the Civil Procedure Act was justified where the earlier suit had been withdrawn

Key legal issues

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01

Whether striking out the suit for being sub judice was proper given the earlier Milimani suit had been withdrawn

Holding

The appeal was allowed; the imperfections in the withdrawal were curable and striking out was drastic, denying the appellant access to justice

Reasoning

The Court found there was no doubt the Milimani suit was meant for withdrawal, as evidenced by the notice to withdraw dated 04.08.2020. Any imperfection in obtaining a withdrawal order or receipt was curable. Failure to plead the earlier suit was also curable or sufficiently disclosed. Any prejudice to the respondent could be mitigated through an award of costs, so striking out was disproportionate.

p. 3

Legal principles established

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  • Procedural imperfections in withdrawing a suit are curable and should not lead to striking out a suit where costs can mitigate any prejudice

Court orders

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  1. 1.The ruling delivered by the trial Court subject of the appeal is set aside together with orders and consequential processes flowing therefrom
  2. 2.Each party to bear own costs of the appeal
  3. 3.The Deputy Registrar to cause the Court file be returned to the Machakos Sub-Registry forthwith

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court (Machakos/Makueni)
ELR Cause No. E006 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the decision of the trial Magistrate's Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court finds that there was no doubt that the suit at Milimani was for withdrawal.
p. 3withdrawal of prior suit
The imperfections in obtaining the withdrawal order or receipt upon filing the withdrawal notice were all curable by way of taking appropriate steps.
p. 3curability of procedural defects
The ruling delivered by the trial Court subject of the appeal is hereby set aside together with orders and consequential processes fiowing therefrom.
p. 3final orders

Issues in the judgment

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minor

Notice of preliminary objection dated 26.10.2023 stated to have been filed before the ruling delivered on 28.09.2022, suggesting a date inconsistency in the judgment

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, "Muli (Suing as the legal representative to the Estate of Benedict Muli Kasukali) v Kitundu Day & Boarding (Appeal E006 of 2022) [2025] KEELRC 715 (KLR)", Case Analysis (2025). ELR Appeal from Makueni ELR Cause No. E006 of 2021 (ruling of 28.09.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/715/eng@2025-03-07

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