[2017] KEELRC 1863 (KLR)
The court found that both the suit before the Chief Magistrate’s Court and the present claim before the Employment and Labour Relations Court arise from the same cause of action. Therefore, the present suit is sub judice as per Section 6 of the Civil Procedure Act. Furthermore, since the cause of action arose in...
Source-derived case information.
- Citation
- [2017] KEELRC 1863 (KLR)
- Parties
- Claimant: Joseph Kaguthi Njihia; Respondent: Monty’s Wines and Spirits Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1327 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out
- Judges
- L Ndolo
- Legal Topics
- Work Injury Compensation, Preliminary Objection, Sub Judice, Statute Barred Claim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kaguthi Njihia
Claimant
Monty’s Wines and Spirits Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is sub judice in light of a similar suit pending before the Chief Magistrate’s Court.
- 2 Whether the claim before this Court is statute barred.
Ratio Decidendi
The court found that both the suit before the Chief Magistrate’s Court and the present claim before the Employment and Labour Relations Court arise from the same cause of action. Therefore, the present suit is sub judice as per Section 6 of the Civil Procedure Act. Furthermore, since the cause of action arose in 2010 and the claim in this Court was filed in 2016, it is statute barred under Section 90 of the Employment Act. The preliminary objection was thus upheld, and the claim was struck out.
Court Disposition
claim struck out
Orders
- The preliminary objection is upheld.
- The Claimant’s claim is struck out with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1327 OF 2016
JOSEPH KAGUTHI NJIHIA………………....……CLAIMANT
VS
MONTY’S WINES AND SPIRITS LTD…….…RESPONDENT
RULING
1. On 9th July 2016 the Claimant filed a claim in this Court seeking work injury compensation. Upon being served with the claim, the Respondent gave notice of a preliminary objection on the ground that there was a similar suit pending determination before the Chief Magistrate’s Court at Milimani.
2. In a supporting affidavit sworn by Jethro Kibet, Advocate it is deponed that the Claimant had filed CMCC No. 2262 of 2012 which suit was yet to be prosecuted.
3. It is therefore the Respondent’s contention that the present suit is an abuse of the court process.
4. In a replying affidavit sworn by the Claimant on 21st October 2016 he depones that CMCC No. 2262 of 2012 is against the Respondent and another party and the claim therein is based on tort.
5. Regarding the case before this Court the Claimant states that he claims compensation arising from an occupational accident and injury.
6. It is therefore the Claimant’s position that the two claims are distinct and separate.
7. I have looked at the plaint filed in the Chief Magistrate’s Court and the Memorandum of Claim filed in this Court and have formed the opinion that the Claimant’s claims in both cases arise from the same cause of action. I therefore agree with the Respondent that the matters raised in this causeare sub judice before the Chief Magistrate’s Court. In any event, the cause of action having arisen in 2010, a claim in this Court would be statute barred.
8. For the foregoing reasons, the preliminary objection raised by the Respondent is upheld and the Claimant’s claim is struck out with no order for costs.
9. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 20THDAY OFJANUARY 2017
LINNET NDOLO
JUDGE
Appearance:
No apperance for the Claimant
Mr. Kibet for the Respondent