[2021] KEELRC 2188 (KLR)
The court found that the contractual relationship between the Claimant and Respondent ended on 19 June 2015, the effective date of retirement as indicated in the notice. Any dues owed to the Claimant became payable on that date. Section 90 of the Employment Act, 2007, requires that employment-related claims be filed...
Source-derived case information.
- Citation
- [2021] KEELRC 2188 (KLR)
- Parties
- Claimant: Albert Ekwaro Emoit; Respondent: Kali Security Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 253 of 2018
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed as time-barred
- Legal Topics
- Limitation of Actions, Termination of Employment, Retirement Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Ekwaro Emoit
Claimant
Kali Security Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the cause of action accrued on the date of notice or on the effective date of retirement.
- 3 Whether the claim should be dismissed for being filed out of time.
Ratio Decidendi
The court found that the contractual relationship between the Claimant and Respondent ended on 19 June 2015, the effective date of retirement as indicated in the notice. Any dues owed to the Claimant became payable on that date. Section 90 of the Employment Act, 2007, requires that employment-related claims be filed within three years from the date the cause of action accrues. The Claimant filed the suit on 5 July 2018, which was after the three-year limitation period had lapsed. The court relied on binding authority from the Court of Appeal, holding that it lacked jurisdiction to entertain claims filed outside the statutory limitation period. Consequently, the court upheld the...
Court Disposition
claim dismissed as time-barred
Orders
- The Memorandum of Claim filed on 5 July 2018 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 253 OF 2018
ALBERT EKWARO EMOIT..........................CLAIMANT
v
KALI SECURITY LIMITED .....................RESPONDENT
RULING
1. Albert Ekwaro Emoit (Claimant) sued Kali Security Co Ltd (the Respondent) on 5 July 2018, and he stated the Issue in Dispute as Unfair treatment at work and failure to pay terminal benefits.
2. In the Memorandum of Claim, the Claimant also alleged breach of contract (underpayment of wages, salary arrears and accrued leave).
3. Among the documents filed by the Claimant was a notice of retirement dated 8 May 2015. The retirement was to take effect on 19 June 2015.
4. The Respondent filed a Statement of Response and Notice of Preliminary Objection on 5 November 2020.
5. The Notice of Preliminary Objection contended
a. THAT the Claim is incompetent and fatally defective for want of compliance with the mandatory provisions of section 90 of the Employment Act, 2007 on the three-year limitation of actions arising from the Employment Act.
b. THAT the employment of the Claimant was terminated by his letter of resignation dated 8 May 2015 which is when all the claims accrued, but the said Claim was only filed on 18 June 2018 more than three years later which fact renders the said Claim fatally defective.
c. THAT in the premises, the said Claim is an abuse of the process of the Court and the same should be dismissed with costs to the Claimant (sic).
6. The Respondent filed its submissions on the Preliminary Objection on 18 November 2020. The Claimant’s submissions which should have been filed and served by 18 December 2020 were not on record.
7. The Court has considered the Objection and submissions on record.
8. The notice of retirement by the Claimant indicated that the contractual relationship would come to an end on 19 June 2015. Any dues accruing to the Claimant became payable upon retirement and not on the date of the notice.
9. In terms of section 90 of the Employment Act, 2007, the Claimant should have instituted legal action on or before 19 June 2018. He commenced the action on 5 July 2018, outside the prescribed limitation deadline.
10. In consideration of binding authority from the Court of Appeal in Divecon v Samani (1995-1998) EA 48 and Attorney General & Ar v Andrew Maina Githinji & Ar(2016) eKLR, the Court has no hesitation in upholding the Notice of Preliminary Objection.
11. The Memorandum of Claim filed in Court on 5 July 2018 is dismissed. No order on costs.
Delivered through Microsoft teams, dated and signed in Kisumu on this 10th day of February 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Claimant Mr. Nyanga instructed by Nyanga & Co. Advocates
For Respondent Ms. Mbugua instructed by Kibungei & Co. Advocates
Court Assistant Chrispo Aura