[2017] KEELRC 1457 (KLR)
The court found that the issue raised in the respondent's preliminary objection—namely, the effect of HCCC No 367 of 2011 on the current claim—had already been conclusively determined in a previous ruling dated 23rd July 2014. In that ruling, the court held that the two matters are distinct and separate. As such,...
Source-derived case information.
- Citation
- [2017] KEELRC 1457 (KLR)
- Parties
- Claimant: David Mwangi Mburu; Respondent: Hotel Intercontinental Nairobi Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 775 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Hearing of Main Claim
- Outcome
- preliminary objection overruled; costs to claimant; main claim to proceed
- Judges
- L Ndolo
- Legal Topics
- Res Judicata, Preliminary Objection, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwangi Mburu
Claimant
Hotel Intercontinental Nairobi Ltd
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Hearing of Main Claim
Legal Issues
- 1 Whether the preliminary objection raised by the respondent is res judicata due to a previous ruling on the same issue.
- 2 Whether the existence of HCCC No 367 of 2011 against KPMG Kenya affects the current claim against the respondent.
Ratio Decidendi
The court found that the issue raised in the respondent's preliminary objection—namely, the effect of HCCC No 367 of 2011 on the current claim—had already been conclusively determined in a previous ruling dated 23rd July 2014. In that ruling, the court held that the two matters are distinct and separate. As such, the doctrine of res judicata applies, precluding the court from reopening the same issue between the same parties. The preliminary objection was therefore overruled, and the respondent was ordered to pay costs to the claimant. The court directed the parties to set down the main claim for hearing on a priority basis.
Court Disposition
preliminary objection overruled; costs to claimant; main claim to proceed
Orders
- The preliminary objection is overruled with costs to the claimant.
- Parties are directed to set down the main claim for hearing on a priority basis.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 775 OF 2012
DAVID MWANGI MBURU……………………………………….CLAIMANT
VERSUS
HOTEL INTERCONTINENTAL NAIROBI LTD……………..RESPONDENT
RULING
1. On 23rd July 2014, I dismissed the Respondent’s application seeking stay of proceedings in this cause pending the hearing and determination of HCCC No 367 of 2011: David Mburu Mwangi v KPMG Kenya.
2. When the main claim came up for hearing on 19th January 2017, the Court was notified that the Respondent had filed a notice of Preliminary Objection. The notice dated 12th January 2017 is based on the ground that the Claimant has filed HCCC No 367 of 2011 against KPMG Kenya.
3. In his grounds of opposition filed on 17th January 2017 the Claimant states that the issue raised in the Preliminary Objection was the same one raised in the Notice of Motion dismissed on 23rd July 2014 and is therefore resjudicata.
4. In the ruling delivered on 23rd July 2014, the Court determined that HCCC No 367 of 2011and the current claim are distinct and separate. This is the same issue being raised in the current Preliminary Objection. The only thing I will say is that having conclusively dealt with this issue way back in 2014, the Court cannot now reopen it. The issue is res judicata and the Objection is therefore overruled with costs to the Claimant.
5. I now direct the parties to set down the main claim for hearing on priority basis.
6. It is so ordered.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBITHIS 28THDAY OF APRIL 2017
LINNET NDOLO
JUDGE
Appearance:
Mr. Keyonzo for the Claimant
Mr. Kalungu for the Respondent