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ELRCDismissedPetition dated 12.10.2023 (court cause number not stated in the judgment)

Rang’ang’a v KCB Bank (K) Limited; Banking, Insurance and Finance Union (Interested Party) (Constitutional Petition E100 of 2024) [2025] KEELRC 709 (KLR)

Employment and Labour Relations Court
7 March 2025
2,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a KCB Bank employee's petition, confirming you cannot relitigate decided employment disputes or claim union benefits without union membership.

What this practically means

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Executive summary

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The petitioner, appearing in person, filed a constitutional petition against KCB Bank PLC, with the Banking Insurance and Finance Union (BIFU) as interested party, seeking orders for access to his medical records under Article 35(1)(b), declarations of victimization, retaliation and discrimination following his filing of Milimani ELRCC E618 of 2021, declarations that his fixed-term engagements converted to permanent and pensionable terms by operation of law, reinstatement or compensation, redundancy pay, and compensation for an allegedly illegal 7-day notice. The respondent opposed the petition through the replying affidavit of Lilian Sogo, contending the petition was res judicata, an abuse of court, and that the medical records were held by hospitals, the contract was fixed-term with no legitimate expectation of renewal, and the petitioner never joined the union to benefit from the CBA. The court framed issues on res judicata, the Article 35 claim, discrimination and CBA entitlement. It held that the issues surrounding the petitioner's service and termination were decided in the earlier suit and were res judicata; that the medical reports were not shown to be in the respondent's possession so the Article 35 claim failed; that the alleged discrimination based on the recall of comparator Karen Chepchirchir Malakwen was speculative and baseless; and that, the petitioner not being shown to be a union member, CBA terms were never incorporated into his contract under section 59(3) of the Labour Relations Act, 2007. The petition was dismissed with each party bearing its own costs, delivered on 7 March 2025 by Principal Judge Byram Ongaya.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition is res judicata in view of the prior judgment in Milimani ELRCC E618 of 2021 delivered on 30.11.2022
  2. 2.Whether the respondent violated Article 35(1)(b) of the Constitution by withholding the petitioner's medical records
  3. 3.Whether the petitioner was discriminated against through the alleged unequal treatment and recall into employment of Karen Chepchirchir Malakwen
  4. 4.Whether the petitioner was entitled to the benefit of the CBA terms, including conversion to permanent and pensionable terms, per section 59 of the Labour Relations Act

Key legal issues

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01

Res judicata

Holding

The issues surrounding the petitioner's service and termination were decided in the earlier suit ELRCC E618 of 2021 and are res judicata

Reasoning

The court found that the parties, the subject matter (termination of the petitioner's employment), the jurisdiction and the finality of the judgment of 30.11.2022 in the former suit aligned with the res judicata doctrine as urged by the respondent. The petitioner's attempt to reframe those issues as fresh constitutional violations was rejected as litigation in instalments.

p. 5
02

Access to medical records under Article 35(1)(b)

Holding

No violation of Article 35(1)(b) established; the medical reports were not shown to be in the respondent's possession

Reasoning

The petitioner did not demonstrate the medical reports were held by the respondent, nor the efforts made to obtain them from his doctor or hospital. The respondent asserted the records are kept by the hospitals conducting annual health checks and cannot be disclosed without breaching privacy. The claim for compensation was found unjustified.

p. 6
03

Discrimination and comparator evidence

Holding

The alleged discrimination based on the recall of Karen Chepchirchir Malakwen was speculative, unfounded and not established

Reasoning

The court held that the circumstances of Karen's subsequent employment were not established at all, and the petitioner did not show he applied for or was entitled to such re-employment but was denied it for the alleged reasons. The comparator was found baseless, so the discrimination claim failed.

p. 6
04

Incorporation of CBA terms into individual contract

Holding

Since the petitioner was not shown to be a member of the union, CBA terms were not incorporated into his contract under section 59(3) of the Labour Relations Act, 2007

Reasoning

The respondent argued the petitioner applied willingly, accepted fixed-term terms, never applied to join the union and never remitted union contributions. The court accepted that membership is the gateway to benefiting from the CBA and found the terms and conditions of service were never incorporated into the petitioner's individual contract.

p. 6

Legal principles established

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  • A court cannot compel a party to provide information not shown to be in that party's possession, for purposes of an Article 35 access-to-information claim
  • CBA terms are incorporated into an individual contract of service only where the employee is a union member per section 59(3) of the Labour Relations Act, 2007
  • A party alleging discrimination must establish a valid comparator and show that, but for the alleged discriminatory reason, he was denied the benefit in issue

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
Byram OngayaPrincipal Judge
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations constitutional petitions (Article 35(1)(b) of the Constitution and Employment Act, Labour Relations Act invoked; specific enabling provision not stated in the judgment)

Relief refused

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Order directing the respondent to furnish the petitioner's medical records under Article 35(1)(b) and damages for withholding them

The petitioner did not show the medical reports were in the respondent's possession; they are held by hospitals

p. 6

Declarations of victimization, retaliation, discrimination and unequal employment opportunities based on the comparator Karen Chepchirchir Malakwen

The discrimination claim was speculative and unfounded; the comparator circumstances were not established

p. 6

Declarations of conversion to permanent and pensionable terms, reinstatement, compensation for unfair termination, redundancy pay and compensation for 7-day notice

The issues surrounding the petitioner's service and termination were decided in the earlier suit, ELRCC E618 of 2021, and are res judicata

p. 5

Claims premised on CBA benefits and conversion per CBA Clause A3(b) and the Memorandum of Agreement

The petitioner was not shown to be a union member, so CBA terms were not incorporated into his contract under section 59(3) of the Labour Relations Act

p. 6

Costs

Each party to bear own costs of the petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court finds that indeed the issues surrounding the petitioner's service and termination or separation were decided in the earlier suit. The matters appear res judicata as urged for the respondent.
p. 5Res judicata - issues decided in ELRCC E618 of 2021
The Court cannot compel the respondent to provide information which has not been shown to be in respondent's possession. The alleged violation of Article 35 and claim for compensation in that regard is found unjustified.
p. 6Article 35 access to information - possession requirement
The alleged comparator is found baseless and the alleged discrimination is not established.
p. 6Discrimination - comparator not established
Thus it appears that the terms and conditions of service never got incorporated into his individual contract of service per section 59(3) of the Labour Relations Act, 2007.
p. 6CBA incorporation into individual contract
In conclusion the petition is hereby dismissed with orders each party to bear own costs of the petition.
p. 6Final orders - dismissal and costs

Issues in the judgment

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minor

The judgment gives inconsistent dates for the delivery of the judgment in the former suit: 'a judgment delivered on 30.11.2022' in the respondent's pleadings, but later 'issues that have not arisen pursuant to the decision rendered in court on 30.11.2023'

minor

The judgment refers to the court's judgment in the earlier cause as holding the petitioner's contract 'fraudulent and illegal' per the petitioner's account, while the respondent asserts the earlier judgment found the petitioner was entitled to benefit from the CBA and that matter is on appeal in Civil Appeal No. 349 of 2023; the judgment does not reconcile these accounts

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rang’ang’a v KCB Bank (K) Limited; Banking, Insurance and Finance Union (Interested Party) (Constitutional Petition E100 of 2024) [2025] KEELRC 709 (KLR)", Case Analysis (2025). Petition dated 12.10.2023 (court cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/709/eng@2025-03-07

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