[2015] KEELRC 1525 (KLR)
The court found that although the claim was filed more than three years after the cause of action arose, the injury or damage complained of was of a continuous nature and had not abated by the time the claim was filed. Therefore, the claim was filed within the one-year window provided for continuing injury under...
Source-derived case information.
- Citation
- [2015] KEELRC 1525 (KLR)
- Parties
- Claimant: Alfred Mwangi Kaninu; Respondent: Del Monte Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 195 of 2013
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit to proceed on merits
- Legal Topics
- Limitation Periods, Terminal Benefits, Continuing Injury, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Mwangi Kaninu
Claimant
Del Monte Kenya 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 nature of the injury or damage is continuous, thus falling within the exception to the three-year limitation period.
Ratio Decidendi
The court found that although the claim was filed more than three years after the cause of action arose, the injury or damage complained of was of a continuous nature and had not abated by the time the claim was filed. Therefore, the claim was filed within the one-year window provided for continuing injury under Section 90 of the Employment Act. As such, the claim is not time barred and the preliminary objection is not upheld.
Court Disposition
preliminary objection dismissed; suit to proceed on merits
Orders
- The preliminary objection is not upheld.
- The suit shall proceed on its merits.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 195 OF 2013
ALFRED MWANGI KANINU ………………………...................…CLAIMANT
VERSUS
DEL MONTE KENYA LIMITED ………..…………..................RESPONDENT
RULING
1. The Respondent has raised preliminary objection in paragraphs 4, 5 and 6 of the statement of response filed on 3rd April 2013 to the effect that the Claim is statutory barred by dint of Section 90of the Employment Actin that from the face of the statement of claim, it is clear that the cause of Action arose on 12th November 2009 and the Claim was filed on 11th February 2013 more than three (3) years period within which an employment claim ought to be filed in terms of Section 90 of the Employment Act 2007.
2. The claim is in respect of terminal benefits which include;
one month salary in lieu of notice;
unpaid salary till date of expected retirement;
accrued leave for fourteen (14) years;
commuter allowance till retirement;
medical, school and paternity leave allowance till retirement;
severance pay for seventeen (17) years;
house allowance; and
compensation for loss of employment;
3. Section 90 reads;
“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”
4. The Claim was filed three (3) years and four (4) months from the time the cause of action arose.
5. The injury or damage complained of are of a continuous nature and had not abated by the time the claim was filed.
6. The filing was therefore done within the one (1) year window as contemplated under Section 90 of the Employment Act.
7. The claim is therefore not time barred. The objection is not upheld and the suit should proceed on the merits.
Dated and delivered at Nairobi this 5th day of February, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE