George Mungai Ngurugwe v National Bank of Kenya Limited [2015] KEELRC 979 (KLR)
The bottom line
#The Employment Court struck out a banker's 2014 claim over her 1998 dismissal, ruling the dispute had already been decided and the time to sue had long expired.
What this practically means
#Executive summary
#Key legal issues
#Date of accrual of cause of action
The cause of action accrued on the date of dismissal (5th August 1998), not on the date of the award or its interpretation (24th December 2003)
Both parties conceded termination occurred on 5th August 1998. The court held a judicial decision does not create a new cause of action; the dismissal itself gave rise to the claim. The union filed Cause 77 of 1999 in 1999 within the then-applicable six-year limitation period, and beneficiaries under that award should have pursued it.
Res judicata
The suit is res judicata as the issues were determined in Cause No. 77 of 1999 by Cockar J., a decision not shown to have been set aside or appealed
The Industrial Court award in Cause 77 of 1999 was comprehensive, identified beneficiaries, and was never set aside or appealed. Once a competent court determines issues between parties, they cannot be relitigated. The decision of Cockar J. did not grant a fresh accrual of cause of action.
Limitation of actions
The suit filed on 3rd February 2014 is hopelessly out of time
Under Section 4(1) of the Limitation of Actions Act, contract actions must be brought within six years. Whether the cause accrued in 1998 or (as the Claimant contended) December 2003/2004, the limitation period expired in 2010 at the latest, long before the present suit was filed. The Employment Act 2007 did not apply to a pre-2007 claim.
Abuse of court process
The suit is an abuse of the court process and informed by poor legal reasoning
Having been determined in Cause 77 of 1999 and being out of time, the attempt to peel off from HCCC 1774 of 2004 and file a fresh individual suit could not stand. The court found the suit fit for striking out on these grounds.
Legal principles established
#- Once a competent Court determines an issue between parties, the parties cannot litigate those matters again; res judicata is an absolute bar to litigation over the same issues.
- The date of termination of employment is the date of accrual of the cause of action, not the date of a subsequent award or its interpretation.
- A party peeling off from a consolidated suit does so at the risk of limitation, jurisdictional and res judicata issues.
Court orders
#- 1.Suit struck out as res judicata and time barred
- 2.Costs to the Respondent
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment claims transferred from the High Court (HCCC 1774 of 2004)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Mungai Ngurugwe v National Bank of Kenya Limited [2015] KEELRC 979 (KLR)", Case Analysis (2015). Preliminary Objection dated 6th August 2014 in the Claimant's suit filed 3rd February 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/979/eng@2015-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.