[2016] KEELRC 837 (KLR)
The court held that the claim was filed outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The Claimant was aware of the limitation issue since 2015 when the Respondent filed its Response but failed to withdraw the claim or seek directions on the preliminary objection at...
Source-derived case information.
- Citation
- [2016] KEELRC 837 (KLR)
- Parties
- Claimant: Bennet Ouma Oyuga; Respondent: Gilanis Supermarket Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 283 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out as statute barred with costs to the respondent
- Judges
- MSA Makhandia
- Legal Topics
- Limitation Periods, Unlawful Termination, Statute Barred Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bennet Ouma Oyuga
Claimant
Gilanis Supermarket Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim for unlawful termination was filed within the statutory limitation period under section 90 of the Employment Act, 2007.
- 2 Whether the claim should be struck out with costs due to being statute barred.
Ratio Decidendi
The court held that the claim was filed outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The Claimant was aware of the limitation issue since 2015 when the Respondent filed its Response but failed to withdraw the claim or seek directions on the preliminary objection at the earliest opportunity. The law on limitation in employment termination cases is settled, and the Claimant's delay in withdrawing the claim warranted an order for costs in favour of the Respondent. Consequently, the court struck out the claim as statute barred and awarded costs to the Respondent.
Court Disposition
claim struck out as statute barred with costs to the respondent
Orders
- The cause of action is struck out for being filed outside the prescribed limitation period.
- The Claimant shall pay costs to the Respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 283 OF 2015
BENNET OUMA OYUGA CLAIMANT
v
GILANIS SUPERMARKET LIMITED RESPONDENT
RULING
The Claimant commenced legal proceedings against the Respondent on 7 October 2015 alleging unlawful termination of employment. The date of the unlawful termination of employment was pleaded as 9 April 2011.
In a Response filed in Court on 30 October 2015, the Respondent raised a preliminary objection to the effect that the cause of action was statute barred.
When the Cause was called out for hearing on 12 July 2016, the parties agreed to argue the preliminary objection first.
The Court has considered the oral submissions made in respect of the preliminary objection.
That the Memorandum of Claim was filed outside the 3 year window provided by section 90 of the Employment Act, 2007 is not in dispute.
In fact, the Claimant’s advocate conceded that the cause of action was statute barred.
But he sought to have the Memorandum of Claim withdrawn with no order as to costs instead of being struck out with costs as sought by the Respondent.
The Claimant was put on notice way back in 2015 when the Response was filed and served that the Respondent was going to raise the question of limitation, but he went ahead and had the Cause set down for hearing without bothering to seek directions on the determination of the preliminary objection in the first instance.
He could have sought to withdraw the Cause much earlier, given the fact that the law on limitation in causes of unfair termination of employment has been settled for some time now.
In this regard, the Claimant ought to meet the Respondent’s costs.
The Court finds and holds that the cause of action having been filed outside the prescribed time should be struck out with costs to the Respondent. It is so ordered.
Delivered, dated and signed in Nakuru on this 29th day of July 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Onyancha instructed by B.M. Nyaribo & Co. Advocates
For Respondent Mr. Murimi instructed by Murimi, Ndumia, Mbago & Muchela Advocates
Court Assistant Nixon