Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutPetition dated 19/12/2023 (ELRC Petition, Nairobi)· [2024] KEELRC 2443 (KLR)

Mutyaene v KCB Bank Limited & 3 others (Employment and Labour Relations Petition E241 of 2023) [2024] KEELRC 2443 (KLR)

Employment and Labour Relations Court
3 October 2024
MNMathews Nderi Nduma
4,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a former KCB employee's petition because he had already litigated the same issues, and he must pay KCB's costs.

What this practically means

#

Executive summary

#
The petitioner, a former clerical employee of Kenya Commercial Bank dismissed on 29/4/2011, had previously succeeded in ELRC Cause No. 859 of 2012, where on 11/7/2016 the court found his summary dismissal unfair and awarded him compensation of twelve months' gross salary, withheld salary and one month's pay in lieu of notice, totaling Kshs. 2,041,084/=. His application for review was dismissed on 30/5/2018, and Civil Appeal No. 399 of 2018 was likewise dismissed by the Court of Appeal on 17/3/2023. He then filed this constitutional petition dated 19/12/2023 seeking numerous declarations that his rights were violated, that sections 49(4), 86(3), 87(3) and 90 of the Employment Act and CBA Clause A5 are unconstitutional, and orders for severance pay, refund of loan interest of Kshs. 469,024.55, reimbursement of litigation costs of Kshs. 378,759.00, recalculated terminal benefits and compensation. The 1st respondent opposed, contending the petition was res judicata, vexatious and an abuse of process, and that the petitioner had failed the constitutional petition threshold. The court framed three issues and, applying section 7 of the Civil Procedure Act and the conjunctive elements of res judicata from the IEBC v Maina Kiai authority, found that the same parties litigating under the same title had had the issues determined or should have raised them in the earlier claim, review and appeal. The 2nd, 3rd and 4th respondents were roped in merely to disguise the suit. The petition was struck out as res judicata and an abuse of court process, dismissed in its entirety, with costs awarded to the 1st respondent against the petitioner personally.

Key legal issues

#
01

Whether the petition is res judicata

Holding

The petition is res judicata as it re-litigates issues arising from the same employment relationship, between the same parties litigating under the same title, which were heard and determined or ought to have been raised in ELRC Cause No. 859 of 2012, the review application and Civil Appeal No. 399 of 2018

Reasoning

The court applied section 7 of the Civil Procedure Act and the conjunctive elements of res judicata restated in the IEBC v Maina Kiai authority. The petitioner was the claimant and the 1st respondent the respondent in the earlier cause; the issues on constitutional validity of the Employment Act provisions, severance, loan interest and certificate of service all arose from the same employment relationship. The 2nd, 3rd and 4th respondents had no specific issues or reliefs framed against them and were roped in only to disguise the suit as different. The constitutional petition could not circumvent the bar.

p. 8
02

Whether the petitioner satisfied the threshold for a constitutional petition

Holding

The petitioner did not satisfy the threshold; the court did not reach the constitutional questions because the res judicata finding disposed of the petition

Reasoning

The court noted the respondents' reliance on the Communications Commission of Kenya v Royal Media Services threshold on establishing a link between the petitioner and the provisions of the Constitution alleged to have been contravened. However, having found the petition res judicata, the court held it unnecessary to consider the remaining issues framed, including the constitutional threshold and entitlement to reliefs. The petition was dismissed in its entirety as lacking merit.

p. 9

Legal principles established

#
  • For res judicata to apply, the elements must be satisfied in conjunctive terms: same issue, same parties, same title, heard and finally determined, by a competent court
  • Matters not raised in the former claim but which ought to have been raised are an afterthought and barred by res judicata

Court orders

#
  1. 1.The petition is struck out as res judicata and an abuse of the court process.
  2. 2.The petition is dismissed in its entirety.
  3. 3.The petitioner to pay the costs of the suit to the 1st respondent.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21(1), 22, 23(3)(d), 24, 25, 26, 27, 28, 29, 30, 31, 33, 35, 40, 41, 43, 46(1)(c), 47, 48, 50, 159(2), 258, 259
  • Employment Act, 2007Sections 6(c), 12, 26, 35(5), 35(6)(c), 40(1)(g), 41, 43, 47(3), 47(4), 49(1), 49(4)(h)(i)(j), 51, 86(3), 87(1), 87(3), 90
  • Civil Procedure ActSection 7
  • Employment and Labour Relations Court ActSection 12(3)(v), (vi), (viii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 7(3), 29(2)
  • Fair Administrative Action ActSections 4 and 6

Cases cited (2)

  • Communications, Commission of Kenya and 5 others versus Royal Media Services and 5 others [2014] eKLR
    [2014] eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai and 5 others [2017] eKLR
    [2017] eKLR
Jurisdiction invoked
Article 22 and 23 of the Constitution (enforcement of Bill of Rights) before the Employment and Labour Relations Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mutyaene v KCB Bank Limited & 3 others (Employment and Labour Relations Petition E241 of 2023) [2024] KEELRC 2443 (KLR)", Case Analysis (2024). Petition dated 19/12/2023 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2443/eng@2024-10-03

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