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ELRCDismissedCause No 871 of 2019· [2022] KEELRC 996 (KLR)

Lilian Rhoda Adhiambo v Barclays Bank of Kenya Limited [2022] KEELRC 996 (KLR)

Employment and Labour Relations Court
27 January 2022
LNLinnet Ndolo
2,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court blocked a former bank employee's second attempt to stop loan charges because she had already lost the same arguments.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent bank, moved the Court by Notice of Motion dated 18th October 2021 seeking an injunction restraining the Respondent from charging commercial interest rates on her staff loan facilities, an order compelling computation and reconciliation of allegedly overcharged interest, and an injunction restraining disposal of her property RTA L.R No. 13924 (Original No. 2144/8). She argued she held a legitimate expectation of preferential staff rates, that her employment was wrongfully terminated on 28th November 2019, and that the Respondent thereafter converted the rates to commercial rates and issued a statutory notice of sale. The Respondent opposed, contending the application was res judicata given its ruling of 4th March 2021 on a similar application, that the Claimant had defaulted on repayments (with arrears of Kshs. 15,404,846.80 as at 6th September 2021), and that a dispute over interest is not a ground for restraining a chargee's statutory power of sale. The sole issue the Court framed was whether the Motion was res judicata. Relying on Section 7 of the Civil Procedure Act and the res judicata tests in the IEBC v Maina Kiai and John Florence Maritime decisions, Linnet Ndolo J held that the identical issues had been heard and determined on merit by O.N Makau J, whose ruling declined the injunction and dismissed the earlier application with costs. Amending the claim to add reinstatement could not revive the determined issues; permitting it would be a second bite at the cherry and an abuse of process. The Motion was dismissed, the interim orders of 20th October 2021 were vacated, and each party was ordered to bear their own costs. The main claim for unlawful termination remains pending before the Court.

Key legal issues

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01

Whether the Motion dated 18th October 2021 is res judicata

Holding

The Motion is res judicata because the same issues were heard and determined on merit by O.N Makau J in the ruling of 4th March 2021

Reasoning

Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties that was heard and finally decided by a competent court. The ruling of 4th March 2021 considered the earlier application on merit and dismissed it with costs; it was not decided on a technicality. Amending the claim to add reinstatement, informed by the earlier finding, cannot open the same issues afresh; to permit it would amount to a second bite at the cherry and abuse of process.

p. 4

Legal principles established

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  • For res judicata to apply, the elements must be satisfied conjunctively: the matter was directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally determined by a competent court.
  • The rationale of res judicata is that there should be an end to litigation and protection of parties from repetitive litigation over the same matter.

Court orders

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  1. 1.The Claimant's Motion dated 18th October 2021 is dismissed
  2. 2.The interim orders granted on 20th October 2021 are vacated
  3. 3.Each party will bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
Jurisdiction invoked
Concurrent first-instance jurisdiction of the Employment and Labour Relations Court over the employment dispute (not expressly invoked in the judgment excerpt)

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, "Lilian Rhoda Adhiambo v Barclays Bank of Kenya Limited [2022] KEELRC 996 (KLR)", Case Analysis (2022). Cause No 871 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/996/eng@2022-01-27

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