Margaret Wanjiku Kimani v Kenya Deposit Insurance Corporation [2019] KEELRC 627 (KLR)
The bottom line
#Substituting KDIC for Chase Bank in an employment claim doesn't restart the limitation clock, but a claimant must fix her pleadings to benefit from that ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under section 90 of the Employment Act, 2009 following substitution of the respondent
Substitution by operation of law is not addition of a new party or cause of action; there is continuity of claims and the cause of action would not be time barred
The Court distinguished Mabro v Eagle Star, which concerned addition of parties or causes of action. Here the respondent took up the Bank's liabilities by operation of law, so claims against it accrue in the right of the previous respondent. There is continuity of claims, triable issues and arguable defence, with no break, as in substitution of deceased parties or receivers. Accordingly the limitation defence would not apply to the substitution.
Whether the claimant is bound by her pleadings
As the pleadings stand, the claimant is bound; her pleadings allege employment and dismissal by the respondent such that the cause of action would appear time barred, but the pending amendment application may cure this
The consent order said to have been recorded on 08.04.2019 continuing the case against Chase Bank (Kenya) Limited in Receivership was not exhibited. A notice of motion of 26.06.2019 seeking leave to further amend the claim appears not to have been heard and determined. Parties are bound by their pleadings; hence the conditional order that the preliminary objection be upheld if the amendment is not pursued.
Legal principles established
#- Substitution of a claimant or defendant claiming or defending in the right of the substituted party does not amount to addition of a new party or cause of action and does not defeat a claim on limitation grounds
- Where liability transfers by operation of law (e.g. receivership), claims accrue in the right of the previous party and the cause of action is not time barred by the substitution
Court orders
#- 1.The parties to take steps for expeditious determination of the pending application for further amendment of the amended claim, failing which the preliminary objection is upheld
- 2.The claimant to pay the applicant's (respondent's) costs of the preliminary objection in any event
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims; Article 159 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wanjiku Kimani v Kenya Deposit Insurance Corporation [2019] KEELRC 627 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/627/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.