[2016] KEELRC 292 (KLR)
The court found that the parties had reached a binding settlement agreement, and the Claimant had accepted payment in full and final settlement of all claims against the Respondent. By executing the terminal dues agreement and acknowledging receipt of Kshs 138,500, the Claimant expressly waived any further claims....
Source-derived case information.
- Citation
- [2016] KEELRC 292 (KLR)
- Parties
- Claimant: Raphael Okango Sikalo; Respondent: Lucy Wairimu t/a Red Rose Restaurant
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 293 of 2015
- Procedural Posture
- Cause / Ruling on Application to Strike Out Claim
- Outcome
- claim struck out with costs to respondent
- Judges
- MSA Makhandia
- Legal Topics
- Settlement Agreements, Terminal Dues, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Okango Sikalo
Claimant
Lucy Wairimu t/a Red Rose Restaurant
Respondent
Procedural Posture
Cause / Ruling on Application to Strike Out Claim
Legal Issues
- 1 Whether the Memorandum of Claim should be struck out due to prior settlement between the parties.
- 2 Whether the Claimant is barred from further claims by virtue of the executed settlement agreement.
- 3 Whether misjoinder of parties is a valid ground for striking out the suit.
Ratio Decidendi
The court found that the parties had reached a binding settlement agreement, and the Claimant had accepted payment in full and final settlement of all claims against the Respondent. By executing the terminal dues agreement and acknowledging receipt of Kshs 138,500, the Claimant expressly waived any further claims. Therefore, the continued prosecution of the claim constituted an abuse of court process, as the cause of action had been extinguished by the settlement. The court also held that misjoinder or non-joinder of parties is not a sufficient ground to strike out a suit, as per statutory provisions. On the basis of the settlement, the court struck out the claim with costs to the...
Court Disposition
claim struck out with costs to respondent
Orders
- The Cause herein is struck out with costs to the Respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 293 OF 2015
RAPHAEL OKANGO SIKALO CLAIMANT
v
LUCY WAIRIMU t/a RED ROSE RESTAURANT RESPONDENT
RULING
1. The Respondent, in an application filed in Court on 23 September 2016 seeks
a) THAT this Honourable Court be pleased to strike out the Memorandum of Claims dated 8th October, 2015 together with all accompanying documents.
b) THAT costs of this Application be provided for.
2. The motion was served upon the Claimant and an affidavit of service filed in Court on 6 October 2016 deposed that the Claimant’s advocate on record accepted and acknowledged service.
3. For unknown reasons, the Claimant’s advocate failed to attend Court when the motion was urged.
4. Among the reasons advanced by the Respondent in seeking the striking out of the Cause are that the issues in dispute were settled and the Claimant was paid Kshs 138,500/- (payment vouchers in which the Claimant acknowledged payment were exhibited to the supporting affidavit).
5. The settlement was reached after the Claimant’s legal advisors at the time wrote a demand letter and after which negotiations were conducted, and a terminal dues agreement was executed on 1 February 2015 (also exhibited).
6. In terms of the agreement, the Claimant accepted that he had no further claims against Red Rose Café.
7. The Court is satisfied that the parties reached an agreement and that after payment, the Claimant accepted that he would have no further claims against the Respondent in terms of the issues which formed the basis of the advocates demand letter.
8. On this singular ground, the Court is satisfied that the cause of action advanced by the Claimant is an abuse of the court process, scandalous and frivolous in that it is meant to annoy the Respondent.
9. The Respondent also sought to have the Cause struck out on the ground that she was wrongly enjoined in the suit.
10. As to this ground, the Court observes that there are express statutory provisions that a suit should not be defeated merely on the ground of non-joinder or misjoinder.
11. In conclusion, the Court finds the motion merited and it orders that the Cause herein be struck out with costs to the Respondent.
Delivered, dated and signed in Nakuru on this 18th day of November 2016.
Radido Stephen
Judge
Appearances
For Claimant Maragia Ogaro & Co. Advocates (did not appear at hearing of motion)
For Respondent Ms. Mukira instructed by Elizabeth Wangari & Co. Advocates
Court Assistant Nixon/Daisy