[2022] KEELRC 14725 (KLR)
The court found that the applicant's application dated 6th May, 2021 was based on the same issues previously determined by the Chief Magistrates Court in Misc. Civil Application No. 44 of 2020, which had been dismissed as statute barred. The applicant failed to disclose this prior proceeding, amounting to material...
Source-derived case information.
- Citation
- [2022] KEELRC 14725 (KLR)
- Parties
- Applicant: Joseph Kinyanjui Kigure; Respondent: Rai Ply Woods (K) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E007 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Suit
- Outcome
- Application to set aside ex parte orders allowed; suit struck out as res judicata.
- Legal Topics
- Res Judicata, Non Disclosure, Execution of Award, Statute Barred Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinyanjui Kigure
Applicant
Rai Ply Woods (K) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Suit
Legal Issues
- 1 Whether the application dated 6th May, 2021 was res judicata due to a prior determination by the Chief Magistrates Court.
- 2 Whether the applicant was guilty of material non-disclosure by failing to inform the court of the previous similar application and its dismissal.
- 3 Whether the ex parte orders granted on 15th July, 2021 should be set aside.
Ratio Decidendi
The court found that the applicant's application dated 6th May, 2021 was based on the same issues previously determined by the Chief Magistrates Court in Misc. Civil Application No. 44 of 2020, which had been dismissed as statute barred. The applicant failed to disclose this prior proceeding, amounting to material non-disclosure. The court held that the matter was res judicata and that the applicant's proper remedy, if dissatisfied with the lower court's decision, was to appeal rather than file a fresh application. Consequently, the court allowed the respondent's application to set aside the ex parte orders and exercised its summary jurisdiction to strike out the entire suit as res judicata.
Court Disposition
Application to set aside ex parte orders allowed; suit struck out as res judicata.
Orders
- The application dated 19th July, 2021 is allowed.
- The entire suit is struck out as being res judicata.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT ELDORET
MISCELLANEOUS APPLICATION NO. E007 OF 2021
JOSEPH KINYANJUI KIGURE.............................................................................APPLICANT
VERSUS
RAI PLY WOODS (K) LTD.................................................................................RESPONDENT
RULING
1. By motion dated 6th May, 2021, the applicant sought orders among others that the award of the Director OSH made on 5th August, 2016 be deemed legitimate and the court do order settlement of the same or give any other direction leading to settlement of the award failure of which execution to issue.
2. The affidavit of service filed on 30th June 2021 sworn by one Lornah Kangu shows the respondent was served on 11th June, 2021. The attached page to the affidavit of service showed it was stamped as received by the respondent on 11th June, 2021 and further that it bore the date 15the July, 2021 as the date for hearing the motion.
3. When the matter came before me on 15th July, 2021 as scheduled, the respondent had neither entered appearance to the application nor filed a response thereto. The Court being persuaded that there was proper service, proceed to grant the application as prayed.
4. The application by the respondent dated 23rd July, 2021 seeks the setting aside of the orders of the Court granted on 15th July, 2021 on the grounds that the application dated 6th May, 2021 was served upon it without a date for hearing.
5. The respondent further had earlier on 19th July, 2021 filed a Replying Affidavit by one Joachim Kimoja in which he deponed among others that the present application was similar to one filed before the Chief Magistrates Court as Misc. Civil Application No. 44 of 2020 which application was heard and determined. The ruling of the lower Court was attached to the affidavit.
6. The Court has perused the said ruling and it is indeed true that the issue before me canvassed through application dated 6th May, 2021 were the same issues before the Lower Court and in respect of which a Ruling was delivered on 19th January, 2021 by Honourable Naomi Wairimu in which she dismissed the application as statute barred.
7. The Court therefore agrees with the respondent that it was material non- disclosure on the part of the applicant in application dated 6th May, 2021 not to disclose that a similar application had been entertained by the subordinate Court and dismissed.
8. If the applicant therein was not satisfied with the determination of the Lower Court the best recourse would have been to appeal to this Court.
9. In conclusion the Court will not only allow the application dated 19th July, 2021 but proceed to exercise its summary jurisdiction and strike out the entire suit as being res judicata.
10. It is so ordered.
Dated and delivered at Eldoret this 18th day of March, 2022
Abuodha Nelson Jorum
Judge ELRC