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ELRCDismissedCause No. 1942 of 2015 (Ruling No. 2)· [2022] KEELRC 894 (KLR)

Boniface Karau Claimant v First Community Bank & another [2022] KEELRC 894 (KLR)

Employment and Labour Relations Court
31 January 2022
3,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that joining a party already involved in a case doesn't restart time limits, and failed objections can't be re-argued.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Onyango J) determines a notice of preliminary objection dated 9th July 2021 by the 2nd Respondent, Takaful Insurance of Africa, seeking striking out of the claim against it. The objection raised two grounds: that the suit against it was time barred under Section 90 of the Employment Act, it having been enjoined by amended memorandum of claim filed on 1st April 2021 long after the cause of action accrued (the claimant's termination on 7th August 2015); and that the dispute was not one contemplated under Section 12(1) of the Employment and Labour Relations Court Act, 2011. The Claimant opposed, arguing res judicata and functus officio given earlier rulings of 23rd April 2020 and 25th January 2021, that the 2nd Respondent had been an Interested Party since the application of 13th October 2016, waiver by participation, and continuing security over his property. The court held the jurisdictional ground res judicata, having been exhaustively determined in the ruling of 23rd April 2020 and never appealed. On limitation, the court found Section 90 inapplicable because the 2nd Respondent had been a party in the capacity of an Interested Party since 2016 and its liability did not change upon formal joinder; no new cause of action was introduced by the change of capacity. The preliminary objection was accordingly dismissed with costs to the Claimant.

Key legal issues

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01

Whether the second ground of the preliminary objection (jurisdiction under Section 12(1)) was res judicata

Holding

Yes - the identical issue was raised in a preliminary objection dated 5th December 2016 and exhaustively determined in the ruling of 23rd April 2020, which was not appealed

Reasoning

The court found the jurisdictional ground replicated an earlier objection it had fully determined in the ruling of 23rd April 2020, which directed formal joinder of the 2nd Respondent. Since that ruling was not challenged on appeal, the issue could not be reopened in a second preliminary objection.

p. 4
02

Whether the suit against the 2nd Respondent was time barred under Section 90 of the Employment Act

Holding

No - Section 90 was inapplicable because the 2nd Respondent had been a party since 2016 as an Interested Party, and the amendment merely changed its capacity without introducing a new cause of action

Reasoning

The court reasoned that the 2nd Respondent had participated since the application of 13th October 2016 in which it was named an Interested Party, and had defended itself. The ruling of 23rd April 2020 found no prejudice would arise from formal joinder. The facts and prayers remained substantially unchanged; only the capacity changed, so no fresh limitation period was triggered.

p. 4

Legal principles established

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  • Where a party has been enjoined to a suit and defended itself, a subsequent change of its capacity in the pleadings does not introduce a new cause of action and does not attract limitation
  • Wider principles of res judicata apply to interlocutory applications within a suit; issues already determined cannot be raised again in a second preliminary objection

Court orders

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  1. 1.Dismissal of the notice of preliminary objection dated 9th July 2021
  2. 2.Costs of the preliminary objection to the Claimant
Jurisdiction invoked
Article 162(2) of the Constitution; Section 12(1) of the Employment and Labour Relations Court Act, 2011

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, "Boniface Karau Claimant v First Community Bank & another [2022] KEELRC 894 (KLR)", Case Analysis (2022). Cause No. 1942 of 2015 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/894/eng@2022-01-31

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