[2015] KEELRC 169 (KLR)
The court found that the respondent failed to provide documentary evidence, such as the pleadings from CMCC 362 of 2014 at Malindi, to demonstrate that the issues in the present suit are materially the same as those in the alleged prior suit. As a result, the court could not determine whether the matter was sub...
Source-derived case information.
- Citation
- [2015] KEELRC 169 (KLR)
- Parties
- Claimant: Safari Kadenge Kathupa; Respondent: Riziki Enterprises Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 168 of 2015
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- preliminary_objection_dismissed
- Legal Topics
- Unfair Termination, Terminal Dues, Preliminary Objection, Sub Judice, Evidence Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Safari Kadenge Kathupa
Claimant
Riziki Enterprises Limited
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is sub judice in view of CMCC 362 of 2014 at Malindi.
- 2 Whether the preliminary objection can be sustained without supporting evidence.
Ratio Decidendi
The court found that the respondent failed to provide documentary evidence, such as the pleadings from CMCC 362 of 2014 at Malindi, to demonstrate that the issues in the present suit are materially the same as those in the alleged prior suit. As a result, the court could not determine whether the matter was sub judice. Furthermore, the court held that a preliminary objection cannot be sustained where its determination requires the court to consider evidence beyond the pleadings. Therefore, the preliminary objection was dismissed as it did not meet the threshold of a pure point of law.
Court Disposition
preliminary_objection_dismissed
Orders
- The preliminary objection by the respondent dated 10.6.2015 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 168 OF 2015
SAFARI KADENGE KATHUPA……………………………………..CLAIMANT
VS
RIZIKI ENTERPRISES LIMITED………………………………RESPONDENT
RULING
Introduction
1 The claimant has brought this suit claiming terminal dues and compensation for unfair termination. In response the respondent has denied liability for the unfair termination and raised preliminary objection (P.O) on ground that the suit issubjudice in view of suit number CMCC 362 of 2014 at Malindi. She however did not annex the pleadings of the Malindi suit to the defence herein.
2 The Preliminary objection was disposed of by written submissions.
Analysis and Determination
3 There is no dispute that there exist suit number CMCC 362 of 2014 involving the parties herein. The issue in dispute is whether issues in dispute in this suit is materially the same as the ones in CMCC 362 of 2014 at Malindi. I after carefully considering the pleading and the submissions filed, the court agrees with the claimant that the material before the court are not enough upon which to base a decision as to whether the present suit is subjudice or not. Had the respondent filed documentary evidence with the defence, the court could have been able to peruse the plaint filed in Malindi.
Although the issue raised is a legal point, the same cannot be decided upon without evidence. The preliminary objection must therefore fail because it cannot stand on its own. It requires evidence prosecute it. It is trite law that objection does not qualify to be a Preliminary objection if it requires evidence to prosecute it.
Disposition
4 For the reasons started above the Preliminary objection by the respondent dated 10. 6.2015 is dismissed with costs.
Signed, Dated and Delivered this 4th day of December 2015
ONESMUS MAKAU
JUDGE.