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ELRCStruck OutNot stated in the judgment (the previous related suit was Cause No. 379 of 2020)· [2025] KEELRC 2596 (KLR)

Ombati v County Government of Machakos (Cause E343 of 2025) [2025] KEELRC 2596 (KLR)

Employment and Labour Relations Court
26 September 2025
ANAGNES KITIKU NZEI
1,793 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a fresh employment lawsuit because its claims were already decided in an earlier case — go back to the original case instead.

What this practically means

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Executive summary

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The Claimant, who had obtained judgment against the County Government of Machakos and the County Public Service Board in ELRC Cause No. 379 of 2020 (delivered 26th April 2022), filed a fresh Notice of Motion dated 21st April 2025 seeking declarations that his employment terminated on 26th April 2022, a corrected certificate of service and last pay certificate, terminal dues of Kshs.5,366,690 with interest, and general damages for breach of statutory and constitutional rights. He complained that documents issued pursuant to the prior judgment wrongly stated the termination date as 30th/31st June 2018 and gave 'disciplinary case' as the reason. The Respondent filed no response. The Court, Agnes Kitiku Nzei J, held that the application was not a review and that the issues raised fell, or ought to have fallen, for determination in the previous suit, rendering them res judicata under Section 7 of the Civil Procedure Act and Order 3 Rule 4 of the Civil Procedure Rules. The Court noted that the prior judgment had already compensated the Claimant for unfair termination and constitutional breaches but did not award interest. A party aggrieved by a judgment should appeal, not file a fresh suit. The Court struck out both the Notice of Motion and the suit as incompetent and an abuse of process, with no order as to costs, while granting liberty to file an appropriate application in the previous suit to address any non-compliance with its judgment.

Key legal issues

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01

Res judicata

Holding

The claims in the fresh suit and application are res judicata as they were raised or ought to have been raised in Cause No. 379 of 2020, which was heard and determined on merit

Reasoning

The Court had in the previous suit determined unfair termination, constitutional breaches, compensation and costs. Under Section 7 of the Civil Procedure Act and Order 3 Rule 4 of the Civil Procedure Rules, a plaintiff must include the whole claim arising from a cause of action and cannot afterwards sue on omitted reliefs. Aggrievement lies in appeal, not a fresh suit.

p. 3
02

Abuse of court process

Holding

The Notice of Motion and the suit are incompetent and an abuse of process and were struck out

Reasoning

The Claimant filed a fresh suit seeking declaratory orders and damages over issues already litigated and determined in a previous suit between the same parties, instead of seeking review or appeal, or enforcing the prior judgment through an application in that suit.

p. 4
03

Proper avenue for non-compliance with a prior judgment

Holding

Any complaint about documents or computations issued pursuant to the prior judgment should be raised by application in that suit

Reasoning

The Court observed that the ruling does not foreclose enforcement: if a certificate of service or computation does not accord with the judgment of 26th April 2022, the Claimant may move the Court in the previous suit for appropriate orders.

p. 4

Legal principles established

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  • Matters directly and substantially in issue, or which ought to have been raised, in a previously determined suit between the same parties are res judicata and cannot be raised in a subsequent suit
  • A party aggrieved by a judgment must appeal rather than file a fresh suit; a fresh suit re-litigating determined issues is an abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 21st April 2025 and the suit herein are struck out
  2. 2.No order as to costs
  3. 3.Liberty noted for the Claimant to file an appropriate application in the previous suit (Cause No. 379 of 2020) if any document or computation by the Respondent did not accord with the judgment therein

Authorities

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Legislation

  • Employment ActSections 18, 19, 51 and 75
  • Civil Procedure ActSection 3A; Section 7
  • Civil Procedure Rules 2010Order 40 Rules 1, 2, 3 and 4; Order 3 Rule 4
  • Employment and Labour Relations Court (Procedure) Rules 2024Noted as silent on res judicata issues
  • Constitution of KenyaArticles 40 and 47

Cases cited (1)

  • Rebecca Ann Maina & 2 Others – vs – Jomo Kenyatta University of Agriculture and Technology
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; application brought under Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ombati v County Government of Machakos (Cause E343 of 2025) [2025] KEELRC 2596 (KLR)", Case Analysis (2025). Not stated in the judgment (the previous related suit was Cause No. 379 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2596/eng@2025-09-26

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