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ELRCDismissedPetition dated 16/9/2024 (referred to as arising from ELRCC No. E408 of 2023)

Njoroge v Equity Bank Kenya Limited (Employment and Labour Relations Petition E141 of 2024) [2025] KEELRC 2140 (KLR)

Employment and Labour Relations Court
17 July 2025
933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a banker's petition because the same disputes had already been decided, confirming you cannot relitigate old claims by calling them constitutional rights.

What this practically means

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Executive summary

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The Petitioner, a former employee of the Respondent bank, filed a constitutional petition alleging that the Respondent discriminated against him in remuneration contrary to Articles 27(5) and 41, violated his privacy and data protection rights by accessing his phone location data contrary to Article 31(c), and arbitrarily debited Kshs. 170,000 from his bank account contrary to Articles 46(1) and 40. The Respondent filed a preliminary objection contending that the petition was time barred under section 90 of the Employment Act and res judicata under section 7 of the Civil Procedure Act, the same parties having litigated a claim in Nairobi ELRCC No. E408 of 2023 that was dismissed on 23rd February 2024 for being time barred. The court set out the elements of res judicata and found that the complaints arose from the employment contract whose termination was litigated in the earlier cause between the same parties. It held that nothing prevented the Petitioner from raising the present issues in the concluded claim, and that re-packaging statutory employment disputes as constitutional violations breached the doctrine of avoidance. The preliminary objection was upheld and the petition dismissed in its entirety, with each party bearing its own costs. Judgment was delivered by Mathews Nduma, Judge, in Nairobi on 17th July 2025.

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 the issues previously decided in Nairobi ELRCC No. E408 of 2023
  2. 2.Whether the petition is time barred under section 90 of the Employment Act, 2007
  3. 3.Whether the court has jurisdiction to hear and determine the petition

Key legal issues

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01

Res judicata

Holding

The petition is res judicata the previous claim as it raises issues arising from the same contract of employment between the same parties, some of which ought to have been raised in the former suit

Reasoning

The court set out four elements of res judicata and found the petition satisfied the elements of matters directly and substantially in issue and prior final determination by a competent court. The constitutional framing did not distinguish the matter because the complaints arose from the employment relationship determined in the earlier cause. Raising them afresh was piecemeal litigation contrary to section 7(4) of the Civil Procedure Act.

p. 2
02

Doctrine of avoidance / constitutionalisation of statutory claims

Holding

Elevating issues already covered by the Employment Act to a constitutional level violates the doctrine of avoidance

Reasoning

The court held that the complaints raised in the petition were fully covered by the Employment Act, 2007, under which the earlier suit was anchored. Re-packaging the same issues as constitutional violations was an artificial attempt to defeat the earlier definitive ruling dismissing the suit as time barred.

p. 2

Legal principles established

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  • A party may not convert issues arising from an employment contract already litigated into a constitutional petition to escape an adverse limitation ruling; such issues are res judicata
  • Matters which might and ought to have been raised in a former suit are deemed directly and substantially in issue in that suit

Court orders

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  1. 1.The preliminary objection on res judicata is upheld
  2. 2.The suit is dismissed in its entirety
  3. 3.Each party to bear their own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction invoked via constitutional petition under Articles 27, 31, 40, 41 and 46 of the Constitution of Kenya 2010; preliminary objection under section 7 of the Civil Procedure Act 2010 and section 90 of the Employment Act 2007

Relief refused

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Relief for discrimination in remuneration contrary to Articles 27(5) and 41(1) and (2)

Res judicata - matters arose from the employment contract already litigated and dismissed in ELRCC No. E408 of 2023

p. 3

Relief for violation of privacy and data protection under Article 31(c)

Could and ought to have been raised in the previous suit; attempt to litigate in piecemeal

p. 2

Relief for unlawful debit of Kshs. 170,000 and deprivation of property under Articles 46(1) and 40

Fully covered by the Employment Act under which the prior suit was anchored; constitutional elevation violates the doctrine of avoidance

p. 3

Costs

Each of the parties to bear their own costs of the suit.

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 petition ticks all the principles of res judicata set out in (a) and (d) above.
p. 2res judicata elements
Nothing prevented the Petitioner from raising all the issues raised in this petition in the concluded claim. This is clearly an attempt by the Petitioner to litigate in piece meal.
p. 2piecemeal litigation
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
p. 3section 7(4) Civil Procedure Act
Accordingly, the pleading of res judicata is upheld by the court and the suit is dismissed accordingly in its entirety. Each of the parties to bear their own costs of the suit.
p. 3final orders

Issues in the judgment

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minor

The petition number of the previous suit is given inconsistently as 408 of 2025 in the pleading and E408 of 2023 in the court's analysis

minor

The previous cause is cited as ELRCC No. E408 of 2018 in paragraph 12, inconsistent with E408 of 2023 elsewhere

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, "Njoroge v Equity Bank Kenya Limited (Employment and Labour Relations Petition E141 of 2024) [2025] KEELRC 2140 (KLR)", Case Analysis (2025). Petition dated 16/9/2024 (referred to as arising from ELRCC No. E408 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2140/eng@2025-07-17

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