Dock Workers Union v Kenya Ports Authority [2018] KEELRC 2349 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 451 OF 2015

DOCK WORKERS UNION…..……………………………..CLAIMANT

VS

KENYA PORTS AUTHORITY……………………….....RESPONDENT

RULING

1. By an application brought by Notice of Motion dated 2nd May 2917 and filed in court on even date, the Respondent seeks orders to strike out the Claimant’s claim.

2. The application, which is supported by the Respondent’s Head of Litigation and Disputes, Turasha J. Kinyanjui is based on the ground that the claim is unsustainable by virtue of judgment delivered inMombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authority on 29th February 2016 and appeal filed therefrom asCivil Application No. 69 of 2015 (UR 58/15): Kenya Ports Authority v Mohamed Yakub Athmani & 19 others.

3. In the affidavit in support of the application, the Respondent’s Head of Litigation and Disputes, Turasha J. Kinyanjui depones that when the Claimant appearedex parte before the Court on 8th July 2015, the Court directed inter alia that this claim be mentioned alongside Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authorityon 24th July 2015.

4. Turasha further depones that when the matter came up for mention on 24th July 2015, the Court observed that the issues raised therein were similar to those in Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authorityand ordered that this claim be kept in abeyance pending the hearing and determination of Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authority.

5. On 29th February 2016, the Claimant’s claim against the Respondent in Cause No 448 of 2015 was dismissed and a subsequent appeal was also dismissed.

6. The Claimant’s response is contained in a replying affidavit sworn by Leonard Rufus Ochieng on 29th June 2017. Ochieng depones that Rule 17(1) and (3) under which the Respondent’s application has been brought does not expressly give the Court power to strike out claims for whatever reason.

7. It is further deponed that the affidavit supporting the application does not comply with Section 22 of the Employment and Labour Relations Court Act. Ochieng adds that the parties in Cause No 448 of 2015 and in the instant case are different. Further the former cause only partially satisfied the reliefs sought in the current claim.

8. The single issue for determination in this application is whether the Claimant’s claim in this cause is res judicata in light of Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authority.

9. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLRthe Court Appeal restated that the essence of the principle of res judicata is to bring litigation to closure so that the same issues and parties do not keep showing up in court. Section 7 of the Civil Procedure Act bars a court from trying a suit whose subject matter has been substantially litigated upon by or on behalf of the same parties and conclusively determined by a court of competent jurisdiction.

10. In the submissions filed on behalf of the Claimant on 25th September 2017, an attempt was made to make a distinction between the parties in  Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authorityand those in the recurrent case. I have looked at the substance of the two claims and find that they are similar. Indeed, the only difference is that in Cause No 448 of 2015, the Claimant’s members sued in their own names while in the present claim, the Claimant has sued in its own name but on behalf of the same members. This is a cosmetic variation which cannot survive the glare of res judicata.

11. In sum, the Court finds that the issues raised in the current cause have been substantively and conclusively determined in Mombasa ELRC Cause No. 448 of 2015: Mohamed Takub Athmani & 20 others v Kenya Ports Authority. On this ground alone, the current cause was ill advised and is struck out.

12. Each party will bear its own costs.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 8TH DAY OF MARCH 2018

LINNET NDOLO

JUDGE

Appearance:

Mr. Ochieng for the Claimant

Mr. Ondego for the Respondent