Ben Kiplagat Tunduny v Standard Chartered Bank Limited
The bottom line
#Kenya's Court of Appeal confirmed employment claims must be filed within three years, and no extension is possible under the Employment Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's claim was statute barred as to justify the trial court striking out the claim
- 2.Whether the appellant's suit was res judicata as to render his claim frivolous and an abuse of the court process
- 3.Whether the appellant was accorded due process
Key legal issues
#Limitation under section 90 of the Employment Act
The claim, filed 28 May 2014 over a cause of action arising 22 December 2008, was filed long after the three-year statutory period and was statute barred.
Section 90 prescribes a three-year limitation period for actions arising from a contract of service. The Employment Act contains no provision for extension of time, and no court order extending time was demonstrated. Reliance on a suit filed by a union lacking locus standi, itself a nullity, could not suspend time.
Res judicata
Cause No. 1610 of 2010 conclusively determined the claim on the merits (no evidence of constructive dismissal), satisfying the prerequisites for res judicata.
Applying section 7 of the Civil Procedure Act and the four prerequisites in Uhuru Highway Development Ltd v Central Bank of Kenya, the court found the earlier suit involved the same matter and parties, was heard and determined by a competent court, and the same issue was re-raised. Dismissal for lack of evidence was a merits finding.
Legal principles established
#- A claim arising from a contract of service must be commenced within three years under section 90 of the Employment Act, and no extension of time is available as the Act makes no provision for extension.
- Proceedings by a party without locus standi, being a nullity, cannot suspend the running of the limitation period.
- A dismissal for lack of evidence supporting a claim is a determination on the merits capable of founding res judicata.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu (sitting as Industrial Court)
- Original KSM Industrial Case No. 112 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Industrial Court (Employment and Labour Relations Court) decision
Relief refused
#Setting aside of the Industrial Court ruling striking out the claim
Claim was statute barred under section 90 of the Employment Act and res judicata following cause No. 1610 of 2010
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
These proceedings having been found null and void it is as if they never existed. Therefore, there were no proceedings or any action that the appellant could rely upon as suspending the period of limitation.
The limitation period is specifically provided for under the Employment Act and there is no provision under that Act for extension of that time, nor has the appellant demonstrated that there was any order made by the court for extension of time.
The upshot of the above is that we find no merit in this appeal and do therefore dismiss it with costs.
It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ben Kiplagat Tunduny v Standard Chartered Bank Limited", Case Analysis (2019). Civil Appeal No. 41 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1044/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.