[2020] KEELRC 1250 (KLR)
The court found that the issues raised in the present suit were the same as those determined in CMCC No. 4418 of 2007, where the claimant challenged his dismissal and was awarded damages. The respondent complied with the judgment and paid the damages. No appeal or review was sought by the claimant regarding the...
Source-derived case information.
- Citation
- [2020] KEELRC 1250 (KLR)
- Parties
- Claimant: Paul Kipruto Sang; Respondent: Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 278 of 2018
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit struck out with costs
- Judges
- NJ Abuodha, B Ongaya
- Legal Topics
- Res Judicata, Limitation of Actions, Unlawful Termination, Reinstatement, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kipruto Sang
Claimant
Attorney General
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present claim is res judicata due to prior determination in CMCC No. 4418 of 2007.
- 2 Whether the claim is statute barred under Section 4 of the Limitation of Actions Act.
- 3 Whether the claimant is entitled to reinstatement after damages were awarded in the previous suit.
Ratio Decidendi
The court found that the issues raised in the present suit were the same as those determined in CMCC No. 4418 of 2007, where the claimant challenged his dismissal and was awarded damages. The respondent complied with the judgment and paid the damages. No appeal or review was sought by the claimant regarding the remedy of reinstatement. The court held that the matter was finally decided between the parties and that reopening it under the guise of enforcing the previous declaration constituted an abuse of court process. Furthermore, the court noted that if the suit were treated as a fresh claim, it would be statute barred as the cause of action arose in 2006. Consequently, the preliminary...
Court Disposition
preliminary objection upheld; suit struck out with costs
Orders
- The suit is hereby struck out with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 278 OF 2018
PAUL KIPRUTO SANG …………………………………… CLAIMANT
VERSUS
ATTORNEY GENERAL ……............…............................RESPONDENT
R U L I N G
1. The respondent in this matter raised a preliminary Objection in the main that the claim was res judicata and that the claim offended the mandatory provisions of Section 4 of the Limitation of Actions Act.
2. In support of the PO, Ms Wangechi for the A.G submitted that the Claimant filed a suit in the Chief Magistrates Court being CMCC No 4418 of 2007 challenging his dismissal and praying for damages. The respondents filed a defence. The claim was then head and the Court delivered its judgement on 15th June, 2012 in which it ordered the respondent to pay damages.
3. The respondent paid the damages. The issues in the present suit were therefore the same issues in CMCC NO. 4418 of 2007. In the new suit the Claimant was now seeking reinstatement. There was no material difference with the suit before the Magistrates Court.
4. On the issue of limitation, Counsel submitted that if one was to treat the suit is being filed for the first time, the cause of action arose in 2006. The same was therefore clearly statute barred.
5. The Claimant did not dispute the fact that the dispute had been decided by the Chief Magistrates Court however it was the Claimant’s contention that upon declaration that the termination of the Claimant was unlawful and awarded him damages, the Claimant’s status reverted to his benefit and privileges which the respondent had denied him owing to the summary dismissal.
6. The dispute over the Claimant’s dismissal was the issue between the parties before the Chief Magistrates Court. The Court heard the matter and pronounced itself the way it did. Neither party appealed. The respondent has in fact stated that it honoured the Court’s judgement and paid the Claimant. The matter was therefore finally decided between the parties. To seek to reopen the same under the guise that the Claimant is seeking to enforce a declaration of the trial Court is a abuse of the Court process.
7. Reinstatement to employment was one of the remedies available to the Claimant when he filed the initial suit. He never prayed for it or if he did the Court never granted it. In the latter scenario, the only option left to the Claimant was to seek either review of the Court’s judgement to seek reinternment or file an appeal seeking the same.
8. Whichever way one looks at it the present claim it is obviously res judicata hence an abuse of the Court process. The Po therefore succeeds with the consequence that the suit is hereby struck out with costs.
9. It is so ordered.
Dated at Nairobi this 13th day of March, 2020
Abuodha Jorum Nelson
Judge
Delivered this 13th day of March, 2020
Byram Ongaya
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.