Kebongo v Barclays Bank of Kenya Presently known as Absa Bank Kenya PLC (Cause 1340 of 2018) [2023] KEELRC 108 (KLR)
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
#Key legal issues
#Whether the present claim is res judicata
The objection fails because Cause No 460 of 2017 was never finally determined
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.
Whether the claim is sub judice
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
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.
Whether the statement of claim should be struck out as incompetent and an abuse of process
The request to strike out was refused; the claimant was granted an opportunity to regularise her pleadings
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.
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.The respondent's preliminary objection dated 31 November 2022 is dismissed
- 2.The claimant is allowed the opportunity to regularise her pleadings in light of the findings in the ruling
- 3.Costs of the application to be in the cause
- 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.