Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNairobi CM CMEL No. 654 of 2020 (Appeal)· [2025] KEELRC 1020 (KLR)

Kithokoi v Fuel Net Company Limited (Employment and Labour Relations Appeal E218 of 2023) [2025] KEELRC 1020 (KLR)

Employment and Labour Relations Court
28 March 2025
JKJ.W. Keli
3,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment appeal was dismissed because the worker filed a duplicate case while his earlier one was still alive in the court system.

What this practically means

#

Executive summary

#
The Appellant, dissatisfied with a ruling of Hon. M.W Murage (SRM) delivered on 20th May 2022 in Nairobi CM CMEL No. 654 of 2020, appealed against the striking out of his employment claim as sub judice. The underlying claim sought declarations of unfair and unlawful termination and underpayment, and monetary reliefs totalling Kshs. 838,290. The Respondent had filed a preliminary objection and a notice of motion asserting that the claim duplicated ELRC No. 6920 of 2019, filed by the same parties on 14th October 2019 over the same subject matter, contrary to Section 6 of the Civil Procedure Act. The Appellant argued that the earlier suit was never registered in the judiciary's Case Tracking System and was thus a nullity ab initio, relying on Kenya Planters Co-Operative Union, David Ndii and Macfoy v United Africa Co. Ltd. The court, as a first appellate court guided by Selle v Associated Motor Boat Co. Ltd and Mbogo v Shah, framed the sole issue as whether the trial court erred in finding the suit sub judice. On perusal of the record, the court found the summons to enter appearance and filing receipt dated 14th October 2019 bearing case number 6920 of 2019 and signed by the executive officer. It held that once a case is given a number upon payment of the requisite fee it cannot be said to have evaporated, and there was no evidence from the court itself that the case did not exist; the claimant never complained to the executive officer and took the easy route of filing a fresh suit. The court applied David Ndii and upheld the ruling, holding suit E654 of 2020 a duplicate and sub judice. The appeal was dismissed without merit, with each party bearing its own costs.

Key legal issues

#
01

Whether the Claimant's suit was sub judice under Section 6 of the Civil Procedure Act

Holding

Yes - the earlier suit CMELRC No. 6920 of 2019 existed and was pending, so the later suit E654 of 2020 was a duplicate and sub judice

Reasoning

The court perused the summons to enter appearance and filing receipt dated 14th October 2019, signed by the executive officer and bearing case number 6920 of 2019. It held that once a case number is issued upon payment of the requisite fee, the case cannot be said to have evaporated. There was no evidence from the court itself that the case did not exist, and the claimant never complained in writing of the file being missing. The suit E654 of 2020 was therefore a duplicate.

p. 7
02

Whether the appellate court should interfere with the trial court's exercise of discretion in striking out the suit

Holding

No - no basis found to interfere with the ruling of Hon. M.W. Murage (SRM)

Reasoning

Applying the Mbogo v Shah principle, the court will not interfere with an inferior court's discretion unless the decision is clearly wrong, based on wrong matters, or ignoring relevant considerations. The court found no such misdirection in the trial magistrate's ruling that the suit was sub judice and struck out with costs.

p. 7

Legal principles established

#
  • Once a case is given a case number upon payment of the requisite fee, it cannot be said to have simply evaporated; absent evidence from the court itself that a suit does not exist, a party cannot treat it as a nullity to escape the sub judice rule
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The Ruling of Hon. M.W. Murage (SRM) of 20th May 2022 is upheld
  3. 3.Each party to bear its own costs in the appeal

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Employment ActSection 90
  • Civil Procedure Rules
  • Employment and Labour Relations Court Rules
  • Employment and Labour Relations Act

Cases cited (6)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
  • Kenya Planters Co-Operative Union Limited v Kenya Co-Operative Coffee Millers Limited & Another
    [2016] eKLR
  • David Ndii & Others v Attorney General & Others
    [2021] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Kenya National Commission on Human Rights v Attorney General
    Supreme Court Advisory Opinion Reference No. 1 of 2017
On appeal from
Chief Magistrate's Court at Nairobi (Milimani)
Nairobi CM CMEL No. 654 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Employment and Labour Relations Court) under the Employment and Labour Relations Court Act / Civil Procedure

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kithokoi v Fuel Net Company Limited (Employment and Labour Relations Appeal E218 of 2023) [2025] KEELRC 1020 (KLR)", Case Analysis (2025). Nairobi CM CMEL No. 654 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1020/eng@2025-03-28

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