Lucas Otieno Ondong v Equitorial Commercial Bank Limited & another [2016] KEELRC 1838 (KLR)
The bottom line
#Kenya's Employment Court removed the Central Bank from a banker's unfair termination case, confirming you can only sue the party that actually employed you.
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 2nd Respondent (Central Bank of Kenya) is wrongly joined as a party to the employment claim and whether the suit against it should be struck out
- 2.Whether the joinder of the 2nd Respondent is necessary to enable the Court effectually and completely adjudicate upon the dispute
Key legal issues
#Whether the Central Bank of Kenya was a necessary and proper party to the unfair termination claim
The joinder of the 2nd Respondent was not necessary; the termination was effected solely by the 1st Respondent and the dispute can be completely adjudicated without the 2nd Respondent
The Court found the only connection between the Claimant and the 2nd Respondent was an inspection report with recommendations made in the course of the 2nd Respondent's statutory mandate. The act of termination and its reasons were entirely the 1st Respondent's. Without the termination letter the report would not have arisen. Applying Order 1 rule 10(2) of the Civil Procedure Rules, the 2nd Respondent's presence was not necessary for complete adjudication, and it was distinguished from the Supreme Court's Trusted Society case on facts.
Whether the 2nd Respondent should be awarded costs for being wrongly enjoined
Costs were refused because the 2nd Respondent acted in the public interest in performance of its statutory duty
Although the application succeeded, the Court noted the CBK carried out its statutory supervisory function over the 1st Respondent and issued the report in the public interest. The Court reasoned that awarding costs would discourage statutory bodies from performing their mandates, so the ordinary consequence of successful striking-out (costs) was withheld and costs were left in the cause.
Legal principles established
#- A stranger to an employment contract whose statutory report merely preceded termination is not a necessary party to a suit for unfair termination
- Joinder must be necessary to enable the Court effectually and completely adjudicate upon the matter
- Each joinder case must be decided on its own facts and remedies sought
- A party performing its statutory duty in the public interest should not be condemned with costs
Court orders
#- 1.Application dated 26th June 2015 allowed
- 2.The 2nd Respondent (Central Bank of Kenya) is expunged from the records herein
- 3.Costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Articles 41 and 159(d) of the Constitution invoked by the Claimant
Relief refused
#Dismissal of the entire suit with costs against the 2nd Respondent
The Court only expunged the 2nd Respondent and declined to award it costs since it was acting in its statutory/public duty
Costs
Costs shall be in the cause; the 2nd Respondent, having acted in its statutory duty in the public interest, should not claim costs.
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.
Save for the report made by the 2nd Respondent with recommendations to the 1st respondent, I find no specific claim(s) against the 2nd respondent.
The presence of the 2nd Respondent before the Court is not a necessary party that will prevent the Court from effectively addressing the issue(s) in dispute completely for the adjudication of the same.
Had the 1st Respondent not issued the letter of termination dated 14 th July 2014, the report of the 2nd Respondent would not have arisen herein.
each case must be looked at in its facts and remedies sought and despite the position in the case of Supreme Court in Trusted Society of Human Rights Alliance, the facts relevant herein are totally different from that case.
Application dated 26th June 2015 allowed. The 2 nd Respondent is expunged from the records herein. Costs shall be in the cause.
Issues in the judgment
#The cause number of this suit is not stated anywhere in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucas Otieno Ondong v Equitorial Commercial Bank Limited & another [2016] KEELRC 1838 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1838/eng@2016-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.