[2021] KEELRC 2399 (KLR)
The court held that the cause of action accrued on 10th June, 2013, the date of the claimant's termination, not on the date of his acquittal in the related criminal case. The pendency of criminal proceedings did not prevent the claimant from filing a civil claim. The suit, having been filed more than seven years...
Source-derived case information.
- Citation
- [2021] KEELRC 2399 (KLR)
- Parties
- Applicant: Bernard Kimutai Maiyo; Respondent: AMPATH Plus
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 28 of 2020
- Procedural Posture
- Employment Claim / Ruling on Preliminary Objection
- Outcome
- claim struck out as statute barred
- Legal Topics
- Limitation of Actions, Unlawful Termination, Accrual of Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Kimutai Maiyo
Applicant
AMPATH Plus
Respondent
Procedural Posture
Employment Claim / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under the Employment Act and Limitation of Actions Act.
- 2 Whether accrual of the cause of action is determined by the date of termination or by the date of acquittal in a related criminal case.
- 3 Whether the claimant was precluded from filing a civil claim while criminal proceedings were ongoing.
Ratio Decidendi
The court held that the cause of action accrued on 10th June, 2013, the date of the claimant's termination, not on the date of his acquittal in the related criminal case. The pendency of criminal proceedings did not prevent the claimant from filing a civil claim. The suit, having been filed more than seven years after the accrual of the cause of action, was therefore statute barred. The court also found the claimant's reliance on the earlier suit (Kisumu ELRC 339 of 2014) unpersuasive, as he could have sought revival of that suit rather than filing a new one. Consequently, the claim was struck out with costs.
Court Disposition
claim struck out as statute barred
Orders
- The claim is struck out with costs for being statute barred.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT UASIN GISHU
COURT NAME: ELDORET LAW COURT
CASE NUMBER: ELRCC/28/2020
CITATION: BERNARD KIMUTAI MAIYO VS AMPATH PLUS
RULING
ON 2021-10-15 BEFORE HON. JUSTICE J. N. ABUODHA
1. The respondent herein raised objection in limine that the Claimant having resigned on 3rd May, 2013 and later suspended and eventually dismissed on 10th June, 2013, the suit herein is statute barred having been filed on 28th July,2020 which was more than seven years after the accrual of the cause of action.
2. According to the Claimant, the suit herein was filed nine months after the acquittal of the Claimant on 31st October, 2019. The Claimant further stated that Kisumu ELRC No 339 of 2014 was lodged within time in 2014 before the dismissal without notice to the parties.
3. The Court of Appeal in the case of Hilarion Mwabalo v. Kenya Commercial Bank (2013) eKLR held as follows:
“Accrual of the Cause of action in a claim emanating from employment contract takes effect from the date of termination as stated in the letter communicating the termination. The fact that an employee whose employment has been terminated seek a review or an appeal does not mean that accrual of the cause of action is held in abeyance until final verdict on review or appeal”.
4. The same should apply in this particular case before me. The Claimant was terminated on 10th June, 2013. This is when the cause action accrued and not when he got acquitted 30th October, 2019 in Criminal case number 1976 of 2013. Nothing prevented the Claimant from filing a civil claim while the Criminal case was going on. The claim will therefore be struck out with costs for being statute barred.
5. Mention was made of Kisumu ELRC 339 of 2014 which was allegedly lodged within time but was dismissed for want of prosecution without notice to the parties. This is doubtful because dismissal
for want of prosecution at the instance of the Court is usually done after notice to the parties. In any event the Court fails to understand why the Claimant chose to file a new suit herein when all he could have done was to seek the revival of the dismissed suit by showing sufficient cause.
6. It is so ordered.
GIVEN UNDER MY HAND AND SEAL OF THIS COURT ON 2021-11-27 10:27:42
SIGNED BY: HON. JUSTICE J. N. ABUODHA (ADMINISTER JUSTICE)
THE JUDICIARY OF KENYA.
ELDORET ELRC
EMPLOYMENT AND LABOUR RELATIONS COURT
DATE: 2021-11-27 10:27:42