[2017] KEELRC 850 (KLR)
The court held that even if the advances were made as part of the employment contract, any claim for recovery should have been instituted within three years from the date the cause of action accrued, as required by section 90 of the Employment Act, 2007. The respondent's attempt to set off the advance against the...
Source-derived case information.
- Citation
- [2017] KEELRC 850 (KLR)
- Parties
- Applicant: Amalgamated Union of Kenya Metal Workers; Respondent: Settlers Engineering Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 423 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review and Set Off
- Outcome
- application dismissed with costs to the Union
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Review of Judgment, Set Off of Award, Limitation Periods, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amalgamated Union of Kenya Metal Workers
Applicant
Settlers Engineering Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review and Set Off
Legal Issues
- 1 Whether the respondent is entitled to a review of the judgment to set off an advance against the award to the claimant.
- 2 Whether the respondent's claim for set-off is barred by limitation under section 90 of the Employment Act, 2007.
- 3 Whether the respondent exercised due diligence in presenting its case and evidence.
Ratio Decidendi
The court held that even if the advances were made as part of the employment contract, any claim for recovery should have been instituted within three years from the date the cause of action accrued, as required by section 90 of the Employment Act, 2007. The respondent's attempt to set off the advance against the award was therefore time-barred. Furthermore, the respondent failed to exercise due diligence by not filing a witness statement or raising the issue of the advance in a timely manner. The court found no merit in the review application and dismissed it with costs to the Union.
Court Disposition
application dismissed with costs to the Union
Orders
- The respondent's application for review and set-off is dismissed.
- The respondent shall pay costs of the application to the Union.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 423 OF 2013
(Originally Nairobi Cause No. 2545 of 2012)
AMALGAMATED UNION OF KENYA
METAL WORKERS CLAIMANT
v
SETTLERS ENGINEERING LIMITED RESPONDENT
RULING NO. 2
1. In a judgment delivered on 3 March 2017, the Court found and held that the termination of employment of Alexander George Chilain was unfair.
2. On 28 March 2017, the Respondent moved Court seeking
1. … (spent)
2. … (spent)
3. THAT this Honourable court be pleased to review its judgment dated 3rd March 2017 and set off its award of Kshs 89,030. 00 against an advance of Kshs 23,600. 00 advanced by the respondent to the claimant and which sum the claimant is yet to pay to the respondent.
4. THAT the balance thereof of Kshs 65,430. 00 be settled in 6 monthly instalments.
5. ….
3. The Union filed its objection to the application on 20 April 2017, and arguments were taken on 21 April 2017.
4. The reasons advanced by the Respondent in seeking the review are that the documents relating to the advance were misplaced by its advocate when moving offices in 2012, and that misplacement was discovered only when the Cause was being heard in 2016, and that copies of the documents have now been traced and that the advocate who conducted the hearing was not aware of the said documents.
5. Mr. Murimi who had conduct of the Respondent’s case urged that the Court being a court of equity and justice should exercise its discretion in favour of the Respondent because there was no denial that an advance had been given.
6. The Union, in opposing the application urged that the reasons relied on were not sufficient and that a Court should not act as a debt collector.
7. Ms. Yambo for the Union also urged that the issue of advance had not been pleaded and that the Respondent should have filed a counter claim. The Respondent, it was submitted had not exercised due diligence and had come to court with unclean hands.
8. The counsel also opposed the prayer seeking settlement of the decretal amount in instalments.
9. The Court has considered the material placed before it and the submissions.
10. The vouchers filed indicating that advances were made to the Grievant are dated 28 October 2007, 24 December 2009, 24 December 2009, 24 December 2009, 24 November 2010, 24 December 2010, 31 May 2011, 31 March 2011 and 30 April 2011.
11. Assuming that the advances were made as part of the employment contract, any cause of action accruing therefrom should have been instituted by the Respondent within 3 years as envisaged by section 90 of the Employment Act, 2007.
12. Any such action should have been commenced by 30 April 2014.
13. In the view of the Court therefore, it is not open to the Respondent to use the back door in an attempt to get the Grievant to pay up an advance which has been caught up by the law of limitation.
14. The Court also notes that the Respondent did not file any witness statement as was directed on 12 February 2016 (Union equally did not file any witness statement). Had the Respondent complied it would have realised that early what case it intended to present in Court.
15. The Court finds no merit in the review application and orders that it be dismissed with costs to the Union.
Delivered, dated and signed in Nakuru on this 31st day of July 2017.
Radido Stephen
Judge
Appearances
For Union Ms. Yambo, Legal Officer, Amalgamated Union of Kenya Metal Workers
For Respondent Mr. Murimi instructed by Murimi, Ndumia, Mbago & Muchela Advocates
Court Assistant Nixon