James Mwangi Kamau v Barclays Bank of Kenya Limited [2022] KEELRC 266 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the employment claim survived the death of the claimant
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
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.
Whether the suit abated and whether substitution could nonetheless be granted
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
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.
Whether the position would differ had judgment been entered in favour of the deceased before his death
The estate could have enforced a crystallized award, but absent a determination in the deceased's favour there was no claim to take over
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 23rd September, 2021 is dismissed
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.