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ELRCDismissedPetition filed 26.04.2017 (number not stated in judgment)· [2019] KEELRC 492 (KLR)

James Mwangi Njiiri v National Bank of Kenya Limited & another [2019] KEELRC 492 (KLR)

Employment and Labour Relations Court
1 November 2019
4,503 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a former bank employee's constitutional petition over a 1999 dismissal because he should have revived his old lawsuit instead of filing a new one.

What this practically means

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Executive summary

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The petitioner, formerly Chief Inspector of Branches of National Bank of Kenya, was placed on compulsory leave on 26.07.1993 over allegations of leaking confidential information, and his employment was terminated effective 12.01.1999 with three months' pay in lieu of notice. He petitioned for declarations that his constitutional rights under Articles 27, 41 and 47 were violated, and claimed damages computed at Kshs. 34,970,944.00, contending his pension was wrongly liquidated to offset alleged debts. The respondents argued the petition was a disguised employment dispute, was barred by limitation under section 90 of the Employment Act, 2007, was an abuse of process given the earlier suit HCCC No. 25 of 1998 dismissed for want of prosecution, and that proper remedies lay under the Retirement Benefits Act. The Court framed three issues: jurisdiction, whether a constitutional issue arose, and whether rights were violated. It held the petitioner had a continuing injury (unexplained application of terminal dues) and had shown reasonable cause for the 18-year delay through exile, asylum and ill-health, so limitation did not bar the claim. However, the matters were substantially the same as those in the earlier dismissed suit; the proper course was to seek revival of that suit rather than file a fresh petition. The petition was accordingly dismissed as an abuse of court process. The Court declared the petitioner at liberty to file an appropriate application in HCCC No. 25 of 1998 within 30 days, and ordered each party to bear its own costs. Rights violations were not determined on the merits.

Key legal issues

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01

Whether the Court has jurisdiction over the petition

Holding

The Court has jurisdiction, but it is impaired because the petition is an abuse of court process given the previously filed and dismissed H.C.C.C No. 25 of 1998

Reasoning

The Court accepted the constitutional-avoidance jurisprudence cited by the respondents but found the petitioner had a continuing injury arising from unexplained application of terminal dues. However, the petitioner had already litigated substantially the same matters in H.C.C.C No. 25 of 1998, dismissed for want of prosecution. Rather than revive that suit, he filed this petition. The Court therefore found the petition barred by res judicata and an abuse of process, impairing its jurisdiction, but granted leave to apply in the earlier suit.

p. 5
02

Whether the petition raises a constitutional issue / limitation defence

Holding

Yes - the petitioner established a continuing injury and reasonable cause for the delay (exile, asylum and ill-health), so limitation under section 90 of the Employment Act, 2007 did not bar the claim

Reasoning

The Court accepted that exile in the USA and granted asylum, together with ill-health documented by a medical report, explained the 18-year delay and the dismissal of the earlier suit for want of prosecution. The unexplained application of terminal dues constituted a continuing injury not ceased since termination. Nonetheless, because the petitioner had an adequate alternative avenue (the earlier suit and other pending suits), the petition remained an improper vehicle.

p. 4
03

Whether the petitioner's rights were violated as alleged

Holding

Not determined; the petition was dismissed as an abuse of process and because alternative mechanisms existed

Reasoning

Having found the petition barred by res judicata and an abuse of process, the Court declined to make findings on the alleged violations of Articles 27, 41 and 47. It directed the petitioner to pursue the pending suits or seek revival of the earlier dismissed suit within 30 days.

p. 5

Legal principles established

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  • A litigant should not convert an ordinary dispute into a constitutional petition where a clear statutory mechanism exists, but a constitutional petition may be available where a continuing injury exists and no other prescribed statutory process addresses it
  • Filing a fresh constitutional petition raising matters substantially in issue in a suit previously dismissed is barred by res judicata and constitutes an abuse of court process; the proper course is to seek to review and set aside the dismissal order
  • In enforcement of Bill of Rights claims, limitation may not apply where there is a genuine constitutional issue and the petitioner explains the delay, as per Njuguna Githiru

Court orders

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  1. 1.Judgment entered for the respondent against the petitioner for dismissal of the petition
  2. 2.Each party to bear own costs of the petition
  3. 3.Declaration that the petitioner is at liberty to file an appropriate application in H.C.C.C No. 25 of 1998 within 30 days from the date of the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(1), Article 41, Article 47, Article 22, Article 23(3)(a), Article 159, Article 165(3)(b), Articles 258 as read with 3(1)
  • Employment Act, 2007Section 90
  • Employment Act, Cap. 226 (repealed)applicable law at time of termination
  • Retirement Benefits Actnot specified (cited as alternative remedy)

Cases cited (16)

  • David Ramogi & 4 Others v The Cabinet Secretary, Ministry of Energy & Petroleum & 7 Others
    [2017]eKLR
  • Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another
    [2016]eKLR
  • Harrikisson v Attorney General
    [1980] AC 265
  • Speaker of the National Assembly v James Njenga Karume
    [1992]eKLR
  • Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others
    Petition No. 14, 14A, B & of 2014
  • Duncan Otieno Waga v Hon. Attorney General
    [2012]eKLR
  • Okiya Omtatah Okoiti v Joseph Kinyua and 2 Others
    [2018]eKLR
  • Revital Healthcare (EPZ) Limited & Another v Ministry of Health & 5 Others
    [2015]eKLR
  • COD & Another v Nairobi City Water & Sewarage Co. Ltd
    [2015]eKLR
  • Beatrice Wanjiru and 2 Others v The Attorney General and Another
    [2017]eKLR
  • Njuguna Githiru v Attorney General
    [2016]eKLR
  • Sophy Njiiri v National Bank of Kenya and Another
    HCCC No. 465 of 2013
  • James Mwangi Njiiri v National Bank of Kenya Limited
    HCCC No. 96 of 2000 (OS)
  • James Mwangi Njiiri v National Bank of Kenya Limited
    HCCC No. 276 of 2006 (OS)
  • Antony Maina Njiiri (Suing as Attorney of debtor) v National Bank of Kenya Limited
    HCCC No. 310 of 2007
  • James M. Njiiri v National Bank of Kenya Limited
    HCCC No. 25 of 1998
Jurisdiction invoked
Constitution of Kenya, 2010, Articles 22, 23(3)(a), 27, 41, 47, 159 and 165(3)(b) as invoked by the parties; the judgment does not state a specific originating jurisdictional provision

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, "James Mwangi Njiiri v National Bank of Kenya Limited & another [2019] KEELRC 492 (KLR)", Case Analysis (2019). Petition filed 26.04.2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/492/eng@2019-11-01

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