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ELRCStruck OutNot stated in the judgment· [2015] KEELRC 955 (KLR)

Ben Kiplagat Tunduny v Standard Chartered Bank [2015] KEELRC 955 (KLR)

Industrial Court (Employment and Labour Relations Court)
27 February 2015
MOMaureen Onyango
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a banker's Kshs. 10.8 million claim because it was filed too late and repeated an already-decided case.

What this practically means

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Executive summary

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The claimant, Ben Kiplagat Tunduny, sued Standard Chartered Bank (K) Ltd on 28th May 2014, alleging that on 22nd December 2008, while working as Branch Operations Manager at the Kericho branch, he was constructively terminated when forced to write a resignation letter. Aged 46 at the time, he sought reinstatement with benefits, Kshs. 10,868,580/= as loss of income, costs and interest. The respondent, through the Federation of Kenya Employers, denied the claim and raised a preliminary objection on grounds of statutory time-bar under Section 90 of the Employment Act, 2007, and res judicata arising from Industrial Court Cause No. 1610 of 2010 (BIFU (K) v Standard Chartered Bank of Kenya Ltd), in which Ndolo J had dismissed the claimant's constructive dismissal claim. The claimant contended that the earlier suit was dismissed for lack of the union's capacity, and that limitation ran afresh from that dismissal, relying also on estoppel and Article 25(c) of the Constitution. Onyango J perused the Ndolo J judgment and found it dismissed the claim both on the merits (no constructive dismissal proved) and on the union's lack of locus standi. The court held the present claim res judicata under Section 8 of the Civil Procedure Act, and further held that limitation runs from the date the cause of action accrued - 22nd December 2008 - so the claim filed on 28th May 2014 was way beyond the limitation period. The court struck out the claimant's case as both res judicata and time barred and made no order for costs.

Key legal issues

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01

Res judicata

Holding

The claim is res judicata because the claimant's constructive dismissal claim was heard and determined in Industrial Court Cause No. 1610 of 2010 (BIFU (K) v Standard Chartered Bank of Kenya Ltd) by Ndolo J, who dismissed it both on the merits and on the union's lack of capacity, and Section 8 of the Civil Procedure Act precludes a further suit on the same cause of action.

Reasoning

The court perused the earlier judgment by Ndolo J and found it dismissed the claim on two grounds: no constructive dismissal was proved by the second grievant (this claimant), and the union had no locus standi to represent him since by his position union membership was unavailable. The parties, facts and issues being the same, Section 8 of the Civil Procedure Act barred the fresh suit.

p. 2
02

Limitation of actions

Holding

The claim filed on 28th May 2014 was way beyond the three-year limitation period in Section 90 of the Employment Act, 2007, time running from 22nd December 2008 when the claimant resigned; it does not run afresh from the dismissal of the earlier suit.

Reasoning

The claimant argued that limitation should be reckoned from the date of the dismissal of the earlier case on 11th November 2013, making the fresh claim filed within a year. The court rejected this, holding that neither Section 90 of the Employment Act nor the Limitation of Actions Act supports such reckoning; time starts from accrual of the cause of action, here the resignation on 22nd December 2008.

p. 3

Legal principles established

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  • A claim that has already been heard and determined between the same parties on the same cause of action is res judicata and precludes a further suit under Section 8 of the Civil Procedure Act
  • Under Section 90 of the Employment Act and the Limitation of Actions Act, limitation time runs from the date of the act complained of or the accrual of the cause of action, not from the dismissal of a prior related suit

Court orders

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  1. 1.The claimant's case is struck out for being both res judicata and time barred
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 88(3)
  • Civil Procedure ActSection 8
  • Limitation of Actions ActNot specified
  • Constitution of Kenya, 2010Article 50(1)(2)(o)
  • Constitution of Kenya, 2010Article 25(c)

Cases cited (3)

  • Banking, Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd
    [2013] eKLR (Industrial Court Cause No. 1610 of 2010)
  • Nakuru Industrial Court Cause No. 204 of 2013
    null
  • Kenya Chemical & Allied Workers Union v Polypipes Ltd (Industrial Court Cause No. 1112 of 2012)
    null
Jurisdiction invoked
Jurisdiction as the trial court over an employment claim under the Employment Act, 2007; no specific constitutional or statutory jurisdictional provision is stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ben Kiplagat Tunduny v Standard Chartered Bank [2015] KEELRC 955 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/955/eng@2015-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.