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ELRCDismissedNot stated in the judgment (Notice of Motion dated 23rd September, 2021)· [2022] KEELRC 266 (KLR)

James Mwangi Kamau v Barclays Bank of Kenya Limited [2022] KEELRC 266 (KLR)

Employment and Labour Relations Court
31 March 2022
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an attempt to continue a deceased worker's unfair termination case because employment claims are personal and the family filed too late.

What this practically means

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 23rd September 2021 by Grace Wairimu Kamau and Maureen Wangu Mwangi, administrators of the estate of the deceased claimant James Mwangi Kamau, seeking substitution of the deceased claimant in an employment suit concerning unfair and unlawful termination. The claimant had died on 14th December 2019 after filing the claim, and the administrators had obtained a limited grant ad litem on 21st June 2021. The respondent opposed, arguing the suit abated in December 2020 under Order 24 Rule 3 of the Civil Procedure Rules and that the application was an abuse of process. Justice Stella Rutto framed the main issue as whether the suit survived the claimant's death. She held that the claim arose from a contract of personal service, the reliefs were in persona, and the allegations and counterclaim could only be contested personally by the deceased through viva voce evidence; applying the maxim actio personalis moritur cum persona and the Court of Appeal's decision in Karl Wehner Claasen, the claim did not survive. She further held that even if the suit survived, it had abated by operation of law since the substitution application came more than one year after death, no extension of time had been sought as required by Order 24 Rule 3(2), and per Rebecca Mijide Mungole time must first be extended before joinder. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the employment claim survived the death of the claimant

Holding

The claim did not survive because it arose from a contract of personal service and the reliefs sought were in persona; the maxim actio personalis moritur cum persona applies

Reasoning

The claim concerned unfair and unlawful termination of employment, a contract of personal service enforceable strictly between the claimant and respondent. The reliefs were personal, and the respondent's counterclaim plus allegations of breach of the employment contract could only be proved or disproved by the deceased himself through viva voce evidence. Only parties privy to the employment contract could prosecute or defend the claim, so it died with the claimant.

p. 2
02

Whether the suit abated and whether substitution could nonetheless be granted

Holding

The suit abated by operation of law under Order 24 Rule 3(2) as the application was made more than one year after death and no extension of time was sought

Reasoning

Order 24 Rule 3(2) requires an application for substitution within one year of the deceased party's death. The claimant died on 14th December 2019 and the application was filed on 23rd September 2021, well beyond one year. Abatement occurs by operation of law, and where no extension of time has first been obtained, the legal representatives lack capacity to apply to be joined; substitution could not therefore be granted.

p. 2
03

Whether the position would differ had judgment been entered in favour of the deceased before his death

Holding

The estate could have enforced a crystallized award, but absent a determination in the deceased's favour there was no claim to take over

Reasoning

The court noted the position may have been different had a determination been rendered in favour of the deceased and an award made, since the claim would have crystallized and become enforceable by the estate. In the absence of such an award, there was no claim the estate could enforce.

p. 2

Legal principles established

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  • Causes of action of a personal nature, such as claims arising from a contract of personal service, do not survive for the benefit of a deceased's estate
  • A suit abates automatically by operation of law where no application to join the deceased's legal representative is made within one year of death, and revival or joinder requires a prior extension of time

Court orders

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  1. 1.The Notice of Motion dated 23rd September, 2021 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10; Order 24 Rule 3(2); Order 51 Rule 12; Order 21 Rule 1
  • Employment ActSection 24(2)
  • Law Reform ActSection 2(1)
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (5)

  • Loice Wanjiru Meru & 3 others vs John Migui Meru
    ELC Appeal No. 3A of 2017
  • Kaburi Njoroge vs Lucy Wangui Njuguna & 2 others
    (2020) eKLR
  • Hottensiah Wambui Igogo vs Grace Kaiso & another
    (20118) eKLR
  • Karl Wehner Claasen vs Commissioner of Lands & 4 others
    [2019] eKLR
  • Rebecca Mijide Mungole & another vs Kenya Power & Lighting Company Ltd & 2 others
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 1 Rule 10, Order 51 Rule 12 of the Civil Procedure Rules

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 Kamau v Barclays Bank of Kenya Limited [2022] KEELRC 266 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 23rd September, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/266/eng@2022-03-31

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