[2017] KEELRC 1714 (KLR)
The court found that the issues in the current claim revolve around the refusal by the 1st respondent to review a CBA negotiation as recommended by the Cabinet Secretary for Labour. However, the court noted that in ELRC Cause No. 813 of 2016, the parties were ordered to negotiate and submit a CBA for registration,...
Source-derived case information.
- Citation
- [2017] KEELRC 1714 (KLR)
- Parties
- Applicant: Kenya Shipping Clearing and Warehouses Workers Union; Respondent: Rapid Kate Services Limited; Respondent: Transport Workers Union (K)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1377 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- suit struck out for being sub judice
- Judges
- HS Wasilwa
- Legal Topics
- Preliminary Objection, Res Judicata, Sub Judice, Collective Bargaining Agreement, Union Dues, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Shipping Clearing and Warehouses Workers Union
Applicant
Rapid Kate Services Limited
Respondent
Transport Workers Union (K)
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is sub judice in light of ELRC Cause No. 813 of 2016.
- 2 Whether the suit is res judicata under Section 7 of the Civil Procedure Act.
- 3 Whether the issues in the current claim are the same as those determined in Cause 813 of 2016.
Ratio Decidendi
The court found that the issues in the current claim revolve around the refusal by the 1st respondent to review a CBA negotiation as recommended by the Cabinet Secretary for Labour. However, the court noted that in ELRC Cause No. 813 of 2016, the parties were ordered to negotiate and submit a CBA for registration, and any party dissatisfied was to seek further directions in that cause. Since the parties in both claims are essentially the same and the subject matter overlaps, the court held that the current suit is sub judice and should be canvassed together with Cause 813 of 2016. Accordingly, the suit was struck out for being sub judice.
Court Disposition
suit struck out for being sub judice
Orders
- The suit is struck out for being sub judice.
- Any party dissatisfied should seek directions in ELRC Cause No. 813 of 2016.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
OF KENYA AT NAIROBI
CAUSE NO. 1377 OF 2016
(Before Hon. Lady Justice Hellen S. Wasilwa on 21st February 2017)
KENYA SHIPPING CLEARING AND
WAREHOUSES WORKERS UNION ………...........……………CLAIMANT
VERSUS
RAPID KATE SERVICES LIMITED…….............…. …. 1ST RESPONDENT
TRANSPORT WORKERS UNION (K).…............…..…2ND RESPONDENT
RULING
1. What is coming up is a Preliminary Objection dated 20th July 2016 where the 1st Respondent raises objection on a point of law that the entire suit and the application filed herein are both incompetent and an abuse of the Court process pursuant to the provisions of Section 7 of the Civil Procedure Act (CAP 21 of the Laws of Kenya) and Article 50 of the Constitution of Kenya being sub-judice and res-judicata.
2. The matter proceeded by way of open Court submissions.
3. The Respondents submitted that the matter is no longer sub judice as judgment was entered in ELRC Cause no 813 of 2016 delivered on the 23rd of September 2016 by Ndolo J in favour of the 2nd Respondent and the CBA has been registered. On the face of the Court, there are 4 prayers in the claim which have also been awarded in 813 of 2016.
4. The Applicants submitted that a Preliminary Objection on grounds that the 1st and 2nd Respondents entered a CBA which they brought to Court for registration and they opposed the same. There had been a dispute as to how union dues were deducted to the 2nd Respondent, the issues in 813 of 2016 are not the same and the 2nd Respondent was not a party to the dispute.
5. They submit that their claim is on Claimants dues and not on CBA as in 813 of 2016.
6. Having considered the application and submissions before me, I note that in Cause 813/2016, the issues were on Union Membership and registration of a CBA. The parties were ordered to negotiate and submit a CBA for registration.
7. In the current claim, the issue revolve around refusal by 1st Respondent from reviewing a CBA negotiation as recommended by Cabinet Secretary for Labour.
8. The parties in the 2 claims seem to be the same only that their positions change. J. Ndolo ordered parties to negotiate and submit a CBA for registration. Any party not satisfied should go before her for further directions.
9. I agree that this matter is subjudiceand should be canvassed with Cause 813/2016 through an application. This suit is therefore struck out for being subjudice.
Read in open Court this 21st day of February, 2017.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Miss Ouma holding brief for Miss Githii for 1st Respondent
Ndege for 2nd Respondent – Present
Nyongena for Claimant – Present