Hudson Kelly A. Agalo v Telkom Kenya Limited [2013] KEIC 3 (KLR)

**_REPUBLIC OF KENYA_** **_IN THE INDUSTRIAL COURT OF KENYA AT KISUMU_** **_CAUSE NO. 6/2013_** (Before Hon. Justice Hellen Wasilwa on 30th September, 2013) HUDSON KELLY A. AGALO .................................................. CLAIMANT **-VERSUS** - TELKOM KENYA LIMITED ...................................... RESPONDENT **_JUDGMENT_** The claimant herein Hudson Kelly A. Agalo filed his memorandum of claim against the respondent herein Telkom Kenya Ltd on 9.1.2013. The claimant's case is that he was employed by the Kenya Posts and Telecommunication in 1980. He produced his letter of employment as Exh – Document No 1. He was then employed as a Telecoms Officer and he worked until 1997 June. By June 1997, the respondents status was still Kenya Posts and Telecommunication but in the year 2000, the respondent changed their name to Telcom (K). Under his contract with the respondents, he was still entitled to certain benefits such as his pension. Previously, the claimant had moved to court at CM's court in Kisumu in Civil Case No. 490 of 2003 after the respondents dismissed him with loss of all his benefits. He sought various remedies before the honourable Magistrate's Court and the court made a decision in his favour ordering that he be paid accordingly. The respondents were not satisfied by the judgment of the lower court and filed High Court Civil Appeal No. 140/2008. The High Court struck out this appeal for reasons given and made an order that the appellant was at liberty to seek a fresh mandate to file an appeal out time should he desire to do so. It appears, the appellants never exercised that option and so the orders of the lower court still stands and must have been executed by now. The claimant has now moved before this court seeking orders for payment of his pension which he avers was not sought for before the lower court. The claimant contends that in both the original plaint in KSM HCC No. 235/2002 and in case No. 490 of 2003 his advocates did not plead the issue of payment of his pension. That the matter of payment of his pension was therefore not alleged by one party and either denied or admitted expressly or impliedly by the other as envisaged by the third explanation under Section 7 of the Civil Procedure Rules. He therefore submits that the issue of his pension was never canvassed before and is therefore not _res judicata._ The respondents on the other hand filed their defence and later an amended defence on 17.7.2013. They did not call any witness in their case. Both parties agreed and filed their respective submissions before this court. Upon examining evidence adduced before me and upon examining the submissions filed, the issues for determination are as follows; 1. Whether the claim by the claimant is _res judicata_. 2. Whether the claimant is entitled to prayers sought. On the first issue it will suffice to go back to the pleadings filed in Kisumu CMCC No. 490 of 2003. In the amended plaint filed in the said CM's case dated 2.3.2004 by the firm of Ashioya and Company Advocates the prayers sought by the plaintiff were:- 1. **Damages for wrongful dismissal and loss of benefits/allowances as set out on paragraph 10.** 2. **Costs of this suit** 3. **Interest on (1) & (2) above at court rates until payment in full.** In her judgment the learned Chief Magistrate (H. Ongudi) as she then was, stated as follows:- **“The plaintiff produced some calculations for his pension (PEX B14) it is not clear on what basis this calculation was made. Even if it was not contested, the plaintiff still had a duty to show how these figures were arrived at. The Teleposta Pension Scheme was not availed to the court”** What the learned Chief Magistrate was stating was that the plaintiff had not made a basis for the award of pension in that the method he used to calculate his pension could not be ascertained by the court and therefore the court could not grapple in darkness seeking to find the method to be employed to arrive at the correct amount payable. For this reason the learned Chief Magistrate declined to award the head of pension because it was not proved. The claimant is now praying for the same pension which was declined by court in 2003. In fact the proper cause for the claimant would have been to file an appeal which he didn't. I believe this is an abuse of the court process for the claimant to institute a fresh case 10 years later without following the proper channels. Assuming that the claimant's case still has a chance what of limitation. The claimant has not established that he sought leave to file this case out of time or if he did he has not laid that evidence bear to the court. By virtue of Section 90 of the Employment Act 2007, this case has to be filed within 3 years from the time, the cause of action arose. I find that the claimant has not established his claim and the same is hereby dismissed for reasons that:- 1. It is _res judicata_ 2. It is filed after the limitation period. The claimant will pay costs of this suit by reason that this is an abuse of the court process. **HELLEN WASILWA** **JUDGE** **_30/09/2013_** **_Appearances:-_** Claimant present in person Owiti h/b Mbaabu for respondents present CC. Sammy Wamache.