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ELRCStruck OutNot stated in the judgment as provided· [2015] KEELRC 1380 (KLR)

Ben Kiplagat Tunduny v Standard Chartered Bank [2015] KEELRC 1380 (KLR)

Industrial Court (Employment and Labour Relations Court)
27 February 2015
MOMaureen Onyango
1,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court struck out a banker's Sh10.8 million claim against Standard Chartered because he filed it too late and had already lost the same dispute in an earlier case.

What this practically means

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Executive summary

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The claimant, Ben Kiplagat Tunduny, sued the Standard Chartered Bank (K) Ltd alleging that on 22nd December 2008, while serving as Branch Operations Manager, Kericho branch, he was constructively terminated by being forced to write a resignation letter. He sought reinstatement with benefits from 22.12.2008, Kshs. 10,868,580/= as loss of income, costs and interest. The respondent, through the Federation of Kenya Employers, filed a defence with a notice of preliminary objection contending that the claim was time-barred under Section 90 of the Employment Act, 2007, filed without leave more than five years after the dispute arose, and res judicata, having been heard and determined in Industrial Court Cause No. 1610 of 2010, Banking, Insurance and Finance Union (K) v Standard Chartered Bank of Kenya, in which Ndolo J dismissed the second grievant's constructive dismissal claim on the merits and dismissed the union's claim for want of capacity to represent him. The claimant argued that limitation should run from the November 2013 judgment in the earlier cause, and relied on estoppel and Article 25(c) of the Constitution. Onyango J perused the earlier judgment, held that the present claim was res judicata under Section 8 of the Civil Procedure Act, and that limitation runs from the act complained of - the resignation of 22nd December 2008 - so that the claim filed on 28th May 2014 was far out of time. The court struck out the claim on both grounds 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 dismissed in Industrial Court Cause No. 1610 of 2010 on both merit (no constructive dismissal proved) and capacity of the union.

Reasoning

The court perused the judgment of Ndolo J in the earlier cause, which dismissed the second grievant's (the claimant's) constructive dismissal claim for lack of corroborative evidence, and dismissed the union's claim for want of capacity. The same parties, facts and issues having been determined, Section 8 of the Civil Procedure Act barred a further suit on the same cause of action.

p. 3
02

Limitation of actions

Holding

The claim, filed on 28th May 2014, was time barred, limitation running from the date of resignation on 22nd December 2008, not from the dismissal of the earlier suit.

Reasoning

The claimant argued that limitation should be reckoned from the dismissal of the earlier union suit in November 2013. The court held that neither Section 90 of the Employment Act nor the Limitation of Actions Act supports that approach; time runs from the act complained of or accrual of the cause of action, here the resignation of 22nd December 2008, making the claim far out of time.

p. 3

Legal principles established

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  • Under Section 90 of the Employment Act and the Limitation of Actions Act, time begins to run from the date of the act complained of or accrual of the cause of action, not from the dismissal of an earlier suit.
  • A claim already litigated and determined is res judicata and precludes a further suit on the same cause of action under Section 8 of the Civil Procedure Act.

Court orders

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  1. 1.Striking out of the claimant's case for being both res judicata and time barred
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 88(3)
  • Civil Procedure ActSection 8
  • Limitation of Actions ActGeneral provisions on accrual of cause of action
  • 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
  • Kenya Chemical & Allied Workers Union V Polypipes Ltd
    Industrial Court Cause No. 1112 of 2012
  • Nakuru Industrial Court Cause No. 204 of 2013
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Civil Procedure Act, Section 8)

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 1380 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1380/eng@2015-02-27

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