[2014] KEELRC 282 (KLR)
The court held that the requirement for written and signed authority does not apply to representative suits, as previously determined by the High Court in this matter. The issue of authority to act has already been conclusively addressed and is therefore res judicata. Raising the same preliminary objection again...
Source-derived case information.
- Citation
- [2014] KEELRC 282 (KLR)
- Parties
- Applicant: Munayi Isaac Opondo; Applicant: Peter Mwangi; Applicant: Walter Onyimbo; Applicant: Thomas Getangia; Applicant: Dennis K. Cheruiyot; Applicant: Julius K. Joika; Applicant: Maurice Olago; Respondent: Kenya Railways Corporation; Respondent: Rift Valley Railways (K)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 37 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Representative Suits, Authority to Act, Preliminary Objection, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munayi Isaac Opondo
Applicant
Peter Mwangi
Applicant
Walter Onyimbo
Applicant
Thomas Getangia
Applicant
Dennis K. Cheruiyot
Applicant
Julius K. Joika
Applicant
Maurice Olago
Applicant
Kenya Railways Corporation
Respondent
Rift Valley Railways (K)
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimants required written and signed authority to institute a representative suit.
- 2 Whether the issue of authority to act is res judicata in this matter.
Ratio Decidendi
The court held that the requirement for written and signed authority does not apply to representative suits, as previously determined by the High Court in this matter. The issue of authority to act has already been conclusively addressed and is therefore res judicata. Raising the same preliminary objection again constitutes an abuse of court process, wastes judicial time, and unnecessarily increases litigation costs. Accordingly, the preliminary objection is dismissed with costs to the claimants.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the claimants on the highest scale.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 37 OF 2013
MUNAYI ISAAC OPONDO ……………..……… 1ST CLAIMANT
PETER MWANGI ……………………………….. 2ND CLAIMANT
WALTER ONYIMBO ……………………………. 3RD CLAIMANT
THOMAS GETANGIA …………………………… 4TH CLAIMANT
DENNIS K. CHERUIYOT ……………………….. 5TH CLAIMANT
JULIUS K. JOIKA ……………………………….. 6TH CLAIMANT
MAURICE OLAGO ……………………………… 7TH CLAIMANT
(Suing on their own behalf and on behalf of all employees whose Authority to Act has been annexed / filed herein).
VERSUS
KENYA RAILWAYS CORPORATION ………….. RESPONDENT
RIFT VALLEY RAILWAYS (K) …..….…… INTERESTED PARTY
RULING
1. The Interested Party herein has noted a preliminary objection which objection is supported by the Defendant to wit;
“This claim is bad in law as no orders of the Court have been sought or obtained to institute a representative suit on behalf of the Claimants referred to.”
2. The Interested Party notes that there is no written and signed authority by each of the alleged Claimants on whose behalf this claim has purportedly been instituted.
This claim is therefore bad in law and ought to be dismissed.
3. This matter was filed in the High Court of Kenya at Nairobi being Civil Case No. 35 of 2007.
Numerous applications were canvassed at the High Court and decisions made thereof.
It is clear that the seven (7) Claimants came to Court in their personal capacity and on behalf of all other employees whose authority is annexed to the Plaint.
4. In the Ruling of the High Court by Ruth Nekoye Sitati J. dated 13th May 2011, one of the issues for determination as raised by the 1st Respondent was;
“the suit as filed is incompetent and totally defective for want of any and / or proper authority and a verifying affidavit.”
The learned Judge referred to an earlier ruling in the same matter by Mr. Justice Waweru on 6th July 2007 and stated as follows;
“the issue of authority was also exhaustively dealt with by Mr. Justice Waweru in his ruling delivered on 6th July 2007. The learned Judge said that such authority is not required in a representative suit but only applies;
“where there are more plaintiffs or defendants than one who have sued or been sued in their individual (not representative) capacity.”
With that finding I agree. I therefore find that this issue of authority is res judicata as far as this application is concerned”
5. I agree with the finding by the two Justices of the High Court and proceed to chastise the Interested Party as supported by the Respondent herein for raising this issue for the third time in this suit.
This conduct has the effect of consuming valuable Court’s time, delaying the suit unnecessarily and escalating the costs of litigation.
I therefore dismiss this application with costs to the Claimants on the highest scale.
Dated and Delivered at Nairobi this 19th day of Sept. 2014
MATHEWS N. NDUMA
PRINCIPAL JUDGE