https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1353

Okumu v Catholic University of Eastern Africa (Cause E1024 of 2024) [2026] KEELRC 1353 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1353 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E1024 of 2024 CN Baari, J May 21, 2026 Between Dr. Daniel Okumu Claimant and Catholic University Of Eastern Africa Respondent Ruling 1.This ruling relates to the respondent’s notice of motion application dated 21st October, 2025, wherein it contends, firstly, that the suit herein is res judicata in that the claim is directly and substantively the same as ELRC Petition E187 of 2021, Joseph Okumu v Catholic University of Eastern Africa, which was determined by the judgment of 2nd November 2023. 2.Secondly, the respondent contends that the claimants’ suit is statute-barred and offends the mandatory provisions of section 89 of the Employment Act; hence, the court has no jurisdiction to hear and determine the same. 3.The respondent finally seeks that the court strike out the suit with costs on the two grounds stated in the foregoing paragraphs. 4.The application is supported by the grounds on the face and the affidavit of Sr. Immaculate Muthoni, the Legal Officer of the respondent, sworn on 21st October, 2024. The respondent contends that the claimant filed the present claim on 3rd December 2024 but failed to serve it upon the respondent, who only became aware of the matter on 30th September 2025. Consequently, the respondent seeks leave of the court to cross-examine the process server regarding the alleged service. 5.The respondent further states that the claimant had previously filed Nairobi ELRC Petition No. E187 of 2021, Joseph Okumu v Catholic University of Eastern Africa, which was opposed and ultimately struck out by the Court (Hon. Justice Ocharo Kebira) on 2nd November 2023. Although the claimant’s former advocate later applied for certified proceedings with the intention of appealing the judgment, no notice or record of appeal was ever served, and the respondent argues that the judgment therefore became final and conclusive. 6.The respondent further avers that the present claim merely reintroduces issues that had already been determined in the earlier Petition, and argues that the suit is statute-barred under section 90 of the Employment Act, since the claimant admitted that his termination took effect on 8th February 2021, meaning any claim ought to have been filed by 9th February 2024. 7.The respondent states that it is on that basis that it maintains that the court lacks jurisdiction to hear the matter because the claim is both res judicata and time-barred, and therefore urges the court to strike it out. 8.The respondent further contends that the claimant is guilty of material non-disclosure and accuses him of attempting to improperly obtain judgment against the respondent through the manner in which the claim has been conducted. Consequently, the respondent urges the court to reprimand the claimant for the alleged conduct. 9.The respondent therefore maintains that the instant claim is incompetent, constitutes an abuse of the court process, and should be struck out with costs. 10.The claimant opposed the motion vide a replying affidavit sworn by him on 13th February, 2026. He contends that the respondent was properly served and that a valid affidavit of service was duly e-filed in court. The claimant maintains that the respondent’s allegations of non-service are an afterthought and made in bad faith. 11.It is the claimant’s position that Nairobi ELRC Petition No. E187 of 2021 concerned constitutional issues relating to violations of fundamental rights and freedoms, whereas the present suit concerns a private employment dispute arising from allegations of unlawful and unfair termination. According to the claimant, the two matters are legally and factually distinct, with the present claim properly falling within the court’s ordinary employment jurisdiction. 12.The claimant contends that the respondent’s assertion that the present suit is res judicata by virtue of ELRC Petition No. E187 of 2021 – Joseph Okumu v The Catholic University of Eastern Africa is erroneous, as the requirements under section 7 of the Civil Procedure Act and the applicable legal thresholds for res judicata have not been satisfied. 13.The claimant states that the claim is not statute-barred under section 90 of the Employment Act, 2007, arguing that the cause of action arose on or about 9th December 2020, and the present claim, having been filed on 3rd December 2024, was instituted within the prescribed three-year limitation period. 14.The claimant further avers that, by an email dated 9th May 2024, the respondent acknowledged owing the Claimant part-time arrears amounting to Kshs. 156,052.50, though the Respondent declined to verify the amount. 15.The claimant maintains that the earlier Petition did not conclusively determine the employment and labour issues now raised, including terminal dues, salary arrears, and contractual claims. The claimant relies on paragraphs 71 and 73 of the judgment in Petition No. E187 of 2021, where the court observed that the remedies sought were not dependent on constitutional issues and ought instead to have been pursued through an ordinary employment claim under the Employment Act and the Employment and Labour Relations Court framework. The Claimant therefore argues that the Petition was dismissed on the basis of procedural impropriety rather than on the merits of the employment claims now before the court. 16.The claimant further states that on advice by counsel, this Court has jurisdiction under article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act to hear and determine all employment and labour disputes raised in the present claim. 17.The claimant contends that the Respondent’s effort to characterize the suit as an abuse of the court process and seek its summary dismissal is intended to deny him the constitutional right to have his grievances heard and determined on their merits, contrary to Article 50(1) of the Constitution. 18.The Claimant avers that it is in the interest of justice and fairness for the matter to proceed to full hearing so that all substantive issues in dispute may be fully ventilated and conclusively determined by the Court. 19.Parties canvassed the application through written submissions, and which have been duly considered. Analysis and Determination 20.The issues for determination are, firstly, whether the Claimants’ claim is res judicata, and secondly, whether the suit is statute barred. 21.The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act, which provides that: -“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 22.The Supreme Court in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, spelled out the elements that must be satisfied for a suit to be said to be res judicata as follows: -“a.The suit or issue was directly and substantially in issue in the former suit.b.The former suit was between the same parties or parties under whom they or any of them claim.c.Those parties are litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 23.Similarly, in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] KESC 6 (KLR), the Supreme Court emphasized that for res judicata to apply, the previous determination must have conclusively resolved the substantive issues in dispute. 24.The Respondent argues that the present claim is founded on the same issues litigated in Petition No. E187 of 2021. However, the excerpts of the judgment relied upon by the Claimant, particularly paragraphs 71 and 73 thereof, demonstrate that the Petition Court declined the Petition on the basis that the grievances raised ought to have been pursued through an ordinary employment claim rather than a constitutional petition. The Court expressly observed that the substantive remedies sought did not depend on constitutional interpretation but ought to have been ventilated under the Employment Act and the Employment and Labour Relations Court Act. 25.In the Court’s view, such a finding cannot be construed as a final determination on the merits of the Claimant’s employment claims. The Court hearing the Claimant’s petition did not interrogate or conclusively determine the issues raised under the petition, or contractual entitlements now pleaded in the present claim. Rather, it found that the Petition had been improperly filed as a petition instead of an ordinary claim. 26.The principle of res judicata bars subsequent proceedings when there has been adjudication by a court of competent and concurrent jurisdiction which conclusively determined the rights of the parties with regard to all or any matters in dispute (see Mandavia -v- Rattan Singh [1965] EA 118). 27.In light of the foregoing, this Court finds that the Respondent has failed to demonstrate that the issues presently before the Court were heard and finally determined in Petition No. E187 of 2021. The plea of res judicata, therefore, fails. Whether the suit is statute barred 28.The Respondent contends that the suit offends Section 90 of the Employment Act because the Claimant’s employment terminated on 8th February 2021, yet the claim was filed on 3rd December 2024. 29.Section 89 (formerly 90) of the Employment Act 2007 states thus: -“Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 30.The Court of Appeal in Divecon Limited v Samani [1995-1998] 1 EA, held that limitation provisions are substantive and that Courts lack jurisdiction to extend time where a statute expressly limits the period within which a claim may be brought. This position was reiterated in G4S Security Services (K) Limited v Joseph Kamau & 468 Others [2018] KECA 827 (KLR). 31.The Claimant asserts that the cause of action arose on or about 9th December 2020 and that he filed the suit on 3rd December 2024, which he contends was within the legal time frame. 32.By simple arithmetic, whether the cause of action accrued from 9th December 2020 or 8th February 2021, the filing date of 3rd December 2024 falls outside the mandatory three-year limitation period prescribed under Section 89 of the Employment Act. 33.Further, although the Claimant seeks to rely on an email dated 9th May 2024, allegedly acknowledging arrears owed to him by the Respondent, an acknowledgment of debt, in my view, cannot revive or extend the limitation period under Section 89 of the Employment Act. In Attorney General & Another v Andrew Maina Githinji & Another [2016] KECA 817 (KLR), the Court reaffirmed that the limitation under Section 89 is strict and jurisdictional. 34.Once limitation attaches, the Court is divested of jurisdiction. As was held in Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), jurisdiction is everything, and without it, a Court must down its tools. 35.This Court therefore finds and holds that the suit herein was filed outside the limitation period prescribed by law. 36.Having found that the suit is statute barred, the Court need not delve into the allegations of abuse of process and material non-disclosure, as the issue of limitation alone is sufficient to dispose of the matter. 37.Finally, while this Court agrees that disputes should, where possible, be determined on their merits pursuant to Article 50(1) of the Constitution, statutory limitation is a substantive jurisdictional issue that cannot be cured by Article 159 of the Constitution or equitable considerations. 38.Accordingly, I find and hold that the Claimant’s suit is statute barred, and the Court lacks jurisdiction to entertain the claim. 39.The Claimant’s suit dated 3rd December 2024 is hereby struck out in its entirety. 40.I make no orders on costs. 41.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.C. N. BAARIJUDGEAppearance:Ms. Odhiambo present for the Claimant.Mr. Situma present for the Respondent.Ms. Esther S - C/A.