[2018] KEELRC 2358 (KLR)
The court found that the claimants had previously filed Nairobi Cause No. 2590 of 2016 against the same respondents, arising from the same alleged wrongful dismissal. The pleadings and issues in both causes were materially identical, and the claimants' attempt to institute a second suit on the same facts amounted to...
Source-derived case information.
- Citation
- [2018] KEELRC 2358 (KLR)
- Parties
- Applicant: Josephine Ndinda Kimweli; Applicant: Florence Katunge Kyengo; Respondent: Mr. & Mrs. Jazz Warah
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 933 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection and Application to Strike Out Suit
- Outcome
- suit struck out with costs to respondents
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Abuse of Court Process, Res Judicata, Wrongful Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Ndinda Kimweli
Applicant
Florence Katunge Kyengo
Applicant
Mr. & Mrs. Jazz Warah
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection and Application to Strike Out Suit
Legal Issues
- 1 Whether the claimants' suit constitutes an abuse of court process by duplicating a previously filed cause arising from the same facts.
- 2 Whether the current cause should be struck out due to the existence of Nairobi Cause No. 2590 of 2016 involving the same parties and issues.
Ratio Decidendi
The court found that the claimants had previously filed Nairobi Cause No. 2590 of 2016 against the same respondents, arising from the same alleged wrongful dismissal. The pleadings and issues in both causes were materially identical, and the claimants' attempt to institute a second suit on the same facts amounted to an abuse of court process. The court emphasized that such duplicative litigation undermines judicial efficiency and is not permissible. Consequently, the court exercised its discretion to strike out the present cause with costs to the respondents, upholding the principle that parties must not litigate the same matter more than once before the court.
Court Disposition
suit struck out with costs to respondents
Orders
- The claimants' suit is struck out with costs to the respondents.
- The costs of the application are to be paid by the claimants.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 933 OF 2017
JOSEPHINE NDINDA KIMWELI ............................... 1st CLAIMANT
FLORENCE KATUNGE KYENGO ........................2nd RESPONDENT
v
MR. & MRS. JAZZ WARAH................................... RESPONDENTS
RULING
1. The 2 Claimants (acting in person) instituted legal proceedings against the Respondents on 18 May 2017 and the Issue in Dispute was stated as
Unfair termination of Miss Josephine Ndinda Kimweli (House servant) employed on 1st May 1999 terminated 4th October 2016. Salary Shs 15,000/= per month No House. (2) Florence Katunge Kyengo (House servant) employed 2nd January 2010 terminated 3rd October 2016. Last salary Shs 11,000/= per month, house provided and failing to pay the Claimants terminal benefits as contained in the Employment Act 2007 and the Regulation of Wages Legal Notices and any other Laws.
2. In its Response, the Respondent indicated that it would raise a Preliminary Objection on the ground that the Claimants had previously filed Nairobi Cause No. 2590 of 2016 in which the cause(s) of action was the same.
3. On 21 November 2017, the Respondents moved Court seeking orders
1. THAT the Claimants suit filed herein be struck out with costs to the Respondents.
2. THAT the costs of this application be paid by the Claimants.
4. When the application was placed before Court on 25 January 2018, the Court directed the Respondents to serve the Claimants through the phone numbers they had indicated in the Memorandum of Claim.
5. According to an affidavit filed in Court on 19 February 2018, the person who answered the phone used by the Claimants denied knowledge of them.
6. The Court therefore allowed Mr. Kang’ethe to prosecute the application.
7. Among the attachments filed with the supporting affidavit to the motion was a Statement of Claim in Nairobi Cause No. 2590 of 2016, Josephine Ndinda Kimweli & Florence Kyengo Katunge v Jazz Warah and Mini Warahwherein the Issue in Dispute was stated as
Wrongful dismissal of the Claimants JOSEPHINE NDINDA KIMWELI and FLORENCE KYENGO KATUNGE, being aggrieved by such wrongful dismissal.
8. The dates of dismissal were pleaded as 3 October 2016 and 5 October 2016.
9. The pleadings were drawn by Wangari Njuguna & Co. Advocates.
10. It does not require any analysis to establish that the Claimants have filed 2 different Causes which arise from the same legal injury/wrongful action allegedly perpetrated by the Respondents.
11. That is an abuse of the Court process and should not be allowed.
12. The Court will therefore allow the instant application and order that this Cause be struck out with costs to the Respondents.
Delivered, dated and signed in Nairobi on this 9th day of March 2018.
Radido Stephen
Judge
Appearances
Claimants In person (did not participate)
For Respondent Mr. Kang’ethe instructed by Kang’ethe & Co. Advocates
Court Assistant Lindsey