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ELRCAllowedCause No E286 of 2023· [2025] KEELRC 2705 (KLR)

Gwakou v Kariuki & 3 others (Being sued as Representatives of Consolata Fathers Society); Absa Bank of kenya PLC, formely Barclays Bank of Kenya Ltd & another (Third party) (Cause E286 of 2023) [2025] KEELRC 2705 (KLR)

Employment and Labour Relations Court
3 October 2025
SRSTELLA RUTTO
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court allowed a school facing an unpaid pension claim to pull the bank and fund manager that ran the scheme into the case as third parties.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Stella Rutto J) determines a Chamber Summons application dated 17th April 2025 by the Respondents seeking to join Absa Bank of Kenya Plc (formerly Barclays Bank of Kenya Ltd) as 1st Third Party and Old Mutual Investment Group Ltd as 2nd Third Party to a claim by an employee seeking declarations and payment of KES 8,781,818 being unremitted pension/provident fund contributions from 1990 to 2012. The Respondents asserted they established a Provident Fund in the early 1990s operated by Barclays-Trust Investment Services Limited, remitted contributions until December 2008, and were never notified that the Fund had been de-registered in 2001 or that the 2nd Third Party acquired Barclays-Trust in 2002; the proposed Third Parties allegedly failed to account for the funds. The 2nd Third Party opposed, arguing it was merely a fund manager acting on trustees' instructions, bore no remittance obligation, was not privy to the employment contract, and that the joinder did not meet Order 1 Rule 15 of the Civil Procedure Rules. The 1st Third Party filed no substantive response. The Claimant submitted any claim against the Third Parties should go through the Retirement Benefits Act dispute resolution framework. Framing the sole issue as whether the proposed Third Parties are proper and necessary parties, the Court applied Rule 30 of the Employment and Labour Relations (Procedure) Rules, 2024. It found the Third Parties' role closely connected to the main cause of action, noted the unrebutted claims against the 1st Third Party and the 2nd Third Party's admitted fund management, and allowed the joinder.

Key legal issues

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Whether the proposed Third Parties are proper and necessary parties to the proceedings under Rule 30 of the ELRC (Procedure) Rules, 2024

Holding

The application was allowed; the issue between the Respondents and the proposed Third Parties is closely connected to the cause of action in the main suit, warranting joinder.

Reasoning

The Claimant's claim covers pension contributions from 1990 to 2012, spanning the period during which the proposed 2nd Third Party managed the Provident Fund. The 2nd Third Party admitted managing the fund and annexed a statement of account demonstrating its management and custodianship. The 1st Third Party filed no substantive response, leaving the Respondents' factual assertions unrebutted. The joinder raises a potential basis of liability of the Third Parties to the Respondents.

p. 6

Legal principles established

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  • A respondent may initiate third-party proceedings in a claim where they have been sued but believe that another party bears responsibility for the claim.

Court orders

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  1. 1.The Respondents' application dated 17th April 2025 is allowed
  2. 2.The proposed third parties (Absa Bank of Kenya Plc and Old Mutual Investment Group Ltd) are joined in the proceedings

Authorities

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Legislation

  • Employment and Labour Relations (Procedure) Rules, 2024Rule 30
  • Retirement Benefits ActSection 40
  • Civil Procedure Rules, 2010Order 1 Rule 15
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Kenya Commercial Bank v Suntra Investment Bank Ltd
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations (Procedure) Rules, 2024, Rule 30

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, "Gwakou v Kariuki & 3 others (Being sued as Representatives of Consolata Fathers Society); Absa Bank of kenya PLC, formely Barclays Bank of Kenya Ltd & another (Third party) (Cause E286 of 2023) [2025] KEELRC 2705 (KLR)", Case Analysis (2025). Cause No E286 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2705/eng@2025-10-03

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