Rang’ang’a v KCB Bank (K) Limited; Banking, Insurance and Finance Union (Interested Party) (Constitutional Petition E100 of 2024) [2025] KEELRC 709 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the respondent violated Article 35(1)(b) of the Constitution by withholding the petitioner's medical records
- 3.Whether the petitioner was discriminated against through the alleged unequal treatment and recall into employment of Karen Chepchirchir Malakwen
- 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
#Res judicata
The issues surrounding the petitioner's service and termination were decided in the earlier suit ELRCC E618 of 2021 and are res judicata
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.
Access to medical records under Article 35(1)(b)
No violation of Article 35(1)(b) established; the medical reports were not shown to be in the respondent's possession
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.
Discrimination and comparator evidence
The alleged discrimination based on the recall of Karen Chepchirchir Malakwen was speculative, unfounded and not established
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.
Incorporation of CBA terms into individual contract
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
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.
Legal principles established
#- 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
#- 1.The petition is dismissed
- 2.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
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
Costs
Each party to bear own costs of the petition
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.
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.
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.
The alleged comparator is found baseless and the alleged discrimination is 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.
In conclusion the petition is hereby dismissed with orders each party to bear own costs of the petition.
Issues in the judgment
#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'
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Plantation & Agricultural Workers Union v Rea Vipingo Limited & another (Cause E008 of 2025) [2025] KEELRC 2098 (KLR)[2025] KEELRC 2098 (KLR)17 Jul 2025applied
Cite this brief
#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.