[2016] KEELRC 316 (KLR)
The court found that the issues raised in the present petition were identical to those previously litigated and determined in Nakuru CMCC No. 2685 of 2003, where the petitioner sought relief for unlawful interdiction, dismissal, and payment of retirement benefits. The court held that repackaging the same grievances...
Source-derived case information.
- Citation
- [2016] KEELRC 316 (KLR)
- Parties
- Petitioner: Aggrey Ajwang Juma; Respondent: Kenya Railway Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Petition 22B of 2016
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection (res Judicata)
- Outcome
- petition struck out as res judicata
- Judges
- MSA Makhandia
- Legal Topics
- Res Judicata, Retirement Benefits, Unlawful Dismissal, Constitutional Rights, Fair Labour Practices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Ajwang Juma
Petitioner
Kenya Railway Corporation
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection (res Judicata)
Legal Issues
- 1 Whether the present petition is barred by the doctrine of res judicata.
- 2 Whether the petitioner is entitled to relitigate issues previously determined by a subordinate court by framing them as constitutional violations.
- 3 Whether the failure to pay pension and retirement benefits after resignation or dismissal constitutes a violation of constitutional rights.
Ratio Decidendi
The court found that the issues raised in the present petition were identical to those previously litigated and determined in Nakuru CMCC No. 2685 of 2003, where the petitioner sought relief for unlawful interdiction, dismissal, and payment of retirement benefits. The court held that repackaging the same grievances as constitutional violations did not alter the substance of the dispute, and the petitioner was bound by the doctrine of res judicata. The appropriate course for the petitioner would have been to appeal the subordinate court's decision rather than initiate fresh constitutional proceedings. Consequently, the petition was struck out as res judicata.
Court Disposition
petition struck out as res judicata
Orders
- The petition is struck out as res judicata.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
PETITION NO. 22B OF 2016
IN THE MATTER OF ARTICLES 19, 20 & 41 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF THE KENYA RAILWAYS CORPORATION (PENSIONS) (INCREASE)(AMENDMENT) REGULATIONS 1988
IN THE MATTER OF THE KENYA RAILWAYS CORPORATION (PENSIONS) REGULATIONS
IN THE MATTER OF THE KENYA RAILWAYS STAFF AND GENERAL NOTICE NO. 3 OF 2002
BETWEEN
AGGREY AJWANG JUMA PETITIONER
V
KENYA RAILWAY CORPORATION RESPONDENT
RULING
1. In a motion filed in Court on 12 August 2016, the Respondent seeks to have the Petition herein dismissed summarily on the ground of res judicata.
2. The Petitioner filed grounds of opposition to the motion on 14 September 2016, while the application was urged on 10 October 2016.
3. The Court has perused the Amended Plaint filed before the subordinate Court in Nakuru CMCC No. 2685 of 2003, Aggrey Ajwang Juma v Kenya Railways Corporation, where the cause of action arose from alleged unlawful interdiction and unlawful dismissal (after Petitioner had resigned), and seeking payment of full retirement benefits (lump sum payment, pension arrears, wages withheld during interdiction, leave allowance and travelling allowance).
4. In a judgment delivered on 12 June 2013, after hearing witnesses, the Court dismissed the suit on the basis that it was incompetent, having been commenced outside the 12 months allowed under section 87 of the Kenya Railways Corporation Act.
5. In the present Petition, the gravamen of the Petitioner’s case is violation of the rights to fair labour practices and fair administrative action, and failure to pay pension and retirement benefits.
6. In the Court’s considered view, the issues raised by the Petitioner herein are the same issues he presented before the subordinate Court for determination, but repackaged as constitutional issues.
7. The present Cause is therefore res judicata. The Petitioner ought to have appealed against the judgment of the subordinate Court rather than to constitutionalise his cause of action, which is and was primarily a question of statutory application of entitlement to pensions and retirement benefits in case of resignation or dismissal under the Kenya Railways Corporation Act.
8. The Court in effect allows the motion and strikes out the Petition with no order as to costs.
Delivered, dated and signed in Nakuru on this 18th day of November 2016.
Radido Stephen
Judge
Appearances
For Petitioner Ms. Mugweru instructed by Mugweru & Co. Advocates
For Respondent Mr. Tombe instructed by Mukite Musangi & Co. Advocates
Court Assistant Nixon/Daisy