Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause No 1340 of 2018· [2023] KEELRC 108 (KLR)

Kebongo v Barclays Bank of Kenya Presently known as Absa Bank Kenya PLC (Cause 1340 of 2018) [2023] KEELRC 108 (KLR)

Employment and Labour Relations Court
26 January 2023
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to strike out a bank employee's claim, ruling res judicata only applies when an earlier case was finally decided.

What this practically means

#

Executive summary

#
The respondent filed a preliminary objection seeking to strike out substantial portions of the claimant's statement of claim and witness statement on three grounds: that the matter was res judicata, having been decided in ELRC Cause No 460 of 2017; alternatively that it was sub judice, Cause No 460 of 2017 still being pending; and that the statement of claim was incompetent, defective and an abuse of court process. The claimant opposed the objection, asserting that the two suits arose in different circumstances and involved different causes of action. The respondent relied on the Mukisa Biscuits definition of a preliminary objection and authorities on res judicata and the sub judice rule. The court perused the record of Cause No 460 of 2017, in which the claimant had filed a claim and a motion on 8 March 2017 seeking to restrain disciplinary action, and in which Mbaru J issued interim orders on 11 May 2017 restraining disciplinary action and directing a conducive work environment. The court found that no further action was taken in that matter, which remains pending, and that there had been no final determination; the plea of res judicata therefore failed. However, the court found the issues in both suits to be the same, observing that the claimant should have amended her earlier claim to capture the emerging developments, including her August 2017 resignation, rather than filing a fresh suit. In the interest of justice the court declined to strike out the pleadings, instead allowing the claimant to regularise them, with costs of the application in the cause. The preliminary objection was accordingly dismissed.

Key legal issues

#
01

Whether the present claim is res judicata

Holding

The objection fails because Cause No 460 of 2017 was never finally determined

Reasoning

The court perused the record of Cause No 460 of 2017 and found that only interim orders had been issued by Mbaru J on 11 May 2017 restraining disciplinary action, and that no further action was taken; the matter remains pending. Since section 7 of the Civil Procedure Act requires a matter directly and substantially in issue to have been heard and finally decided, the plea of res judicata could not stand.

p. 3
02

Whether the claim is sub judice

Holding

The court found the issues in both suits are the same and the claimant should have amended the earlier claim rather than filing a fresh suit

Reasoning

Although the res judicata plea failed, the court observed that the issues giving rise to both cases are the same; the proper course was to amend the claim in Cause No 460 of 2017 to include the emerging developments, notably the August 2017 resignation, rather than institute a fresh suit. Nevertheless, in the interest of justice the court declined to strike out the pleadings.

p. 4
03

Whether the statement of claim should be struck out as incompetent and an abuse of process

Holding

The request to strike out was refused; the claimant was granted an opportunity to regularise her pleadings

Reasoning

Weighing the findings on sub judice against the interest of justice, the court held that striking out the pleadings was not warranted. Instead the claimant was afforded an opportunity to regularise her pleadings in light of the ruling, and costs were made costs in the cause.

p. 4

Legal principles established

#
  • Res judicata under section 7 of the Civil Procedure Act requires a final determination of the earlier suit; where the earlier suit remains pending and undetermined, the plea fails
  • The sub judice rule targets multiplicity of suits over the same subject matter to avoid abuse of process and conflicting decisions

Court orders

#
  1. 1.The respondent's preliminary objection dated 31 November 2022 is dismissed
  2. 2.The claimant is allowed the opportunity to regularise her pleadings in light of the findings in the ruling
  3. 3.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure Actsection 7

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors
    [1969] EA 696
  • E.T v Attorney General & another
    [2012] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (original employment dispute; specific constitutional provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kebongo v Barclays Bank of Kenya Presently known as Absa Bank Kenya PLC (Cause 1340 of 2018) [2023] KEELRC 108 (KLR)", Case Analysis (2023). ELRC Cause No 1340 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/108/eng@2023-01-26

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