[2018] KEELRC 1172 (KLR)
The court found that the present petition raised the same facts and issues as Kisumu ELRC Petition No. 23 of 2015, which is still pending judgment. The petitioner ought to have raised any new matters by way of amendment in the earlier petition rather than filing a new suit. Entertaining the current petition would...
Source-derived case information.
- Citation
- [2018] KEELRC 1172 (KLR)
- Parties
- Petitioner: Patrick Wanyonyi Khaemba; Respondent: Teachers Service Commission; Respondent: Board of Management Kapletingi Mixed Day Secondary School; Respondent: Francis Tanui
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 30 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection/strike Out Application
- Outcome
- petition struck out for duplicity and abuse of court process
- Judges
- MN Nduma
- Legal Topics
- Subjudice Rule, Abuse of Court Process, Duplicity of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Wanyonyi Khaemba
Petitioner
Teachers Service Commission
Respondent
Board of Management Kapletingi Mixed Day Secondary School
Respondent
Francis Tanui
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/strike Out Application
Legal Issues
- 1 Whether the present petition is sub judice in light of Kisumu ELRC Petition No. 23 of 2015.
- 2 Whether filing a new petition on the same facts between the same parties constitutes an abuse of court process.
- 3 Whether the petition should be struck out for duplicity.
Ratio Decidendi
The court found that the present petition raised the same facts and issues as Kisumu ELRC Petition No. 23 of 2015, which is still pending judgment. The petitioner ought to have raised any new matters by way of amendment in the earlier petition rather than filing a new suit. Entertaining the current petition would violate the rule of sub judice and amount to an abuse of the court process. The court emphasized its responsibility to prevent multiplicity of suits and deter abuse of its process. Consequently, the petition was struck out for duplicity, with all pending issues to be determined in the earlier petition.
Court Disposition
petition struck out for duplicity and abuse of court process
Orders
- The petition is struck out for duplicity and abuse of court process.
- All pending issues in this petition shall be determined in Kisumu ELRC Petition No. 23 of 2015.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 30 OF 2017
(Before Hon. Justice Mathews N. Nduma)
PATRICK WANYONYI KHAEMBA......................PETITIONER
VERSUS
TEACHERS SERVICE COMMISSION........1ST RESPONDENT
BOARD OF MANAGEMENTKAPLETINGI
MIXED DAYSECONDARY SCHOOL............2ND RESPONDENT
FRANCIS TANUI................................................3RD RESPONDENT
R U L I N G
1. Upon a careful consideration of the application dated 4th September 2017, the Replying affidavit by the Respondent and their respective submissions, the court is satisfied that the Petitioner filed constitutional petition being Kisumu ELRC Petition No. 23 of 2013 dated 8th October, 2015 raising the same facts and issues for determination as the one raised in the present petition No. 30 of 2017 arising from the petitioner’s interdiction by the TSC, the 1st applicant. Any new matters needed to be raised by way of amendment but not filing a new suit on same set of facts between the same parties.
2. All the issues raised in the present petition were canvassed in and are pending determination in Kisumu ELRC Petition No. 23 of 2015 which is pending judgment.
3. The rule of subjudice goes to the care of the administration of justice. The court has responsibility to stop abuse of its process by deterring multiplicity of suit which clog the judiciary system. See Petition No. 548 of 2015, Okiya Omtatah Okoiti & another v Ministry of Transport & infrastructure & 4 others [2016]eKLR.
4. Accordingly, all pending issues in this petition shall be determined in Kisumu ELRC Petition No. 23 of 2015.
5. The Petition is struck-out for duplicity which is an abuse of the court process with costs.
Dated and Signed in Kisumu this 20th day of September, 2018
Mathews N. Nduma
Judge
Appearances
Mr. Calvin Anyuor Advocate for Respondents/Applicants
Petitioner/Respondent in person
Chrispo – Court Clerk