[2015] KEELRC 491 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

CAUSE NO. 783 OF 2014

DANSON NDETI…………..….……………………... CLAIMANT

VERSUS

THE BOARD OF TRUSTEES

NATIONAL SOCIAL SECURITY FUND…......... RESPONDENT

Mr Uvyu for Claimant

M/s Oyombe for Objector/Respondent

RULING

1. This suit was filed on 13th May 2014 vide a memorandum of claim dated 12th May 2014.

2. Under paragraph 9 of the statement of claim, the Claimant states that the Respondent dismissed the Claimant from employment without giving any adequate or good reasons.

3. The Claimant avers under paragraph 10 of the statement of claim that he was charged at Nairobi in Criminal case No. 608 of 2006 with the offence of making a document without authority contrary to Section 357(e) of the penal code, uttering a false document contrary to section 353 of the penal code and attempting to steal contrary to section 275 of the penal code.

4. The Claimant avers that he was acquitted of all the charges on 1st July 2011 and on 23rd March 2012, he wrote a letter to the Respondent appealing the dismissal.

5. The Respondent responded on 12th July 2012, stating that the Claimant was lawfully dismissed from employment.

6. The Respondent filed a Memorandum of Defence on 16th September 2014, in which it raised preliminary objection to wit;

4. 1 That the suit offends the provisions of Section 4 (1) of the Limitation of Actions Act cap 22 of the laws of Kenya and is therefore time barred

7. The Respondent filed written submission on the preliminary objection on 25th May 2015 whereas the Claimant filed submissions on the preliminary point on 16th June 2015.

Issues for determination

8. Did the cause of action arise from the date of summary dismissal being 26th July, 2006 or upon the conclusion of the Criminal Case against the Claimant on 1st July 2011?

Determination

9. The Claimant was asked to show cause why disciplinary action should not be taken against him following the Claimants arrest on 23rd May 2006.

10. The Claimant explained the circumstance of his arrest by a letter dated 12th July 2006 and on 26th July 2006 he received a letter of dismissal.

11. In the Industrial Court of Kenya at Nairobi Case No. 1150 of 2013, Eunice Chebukwa Wanjala Vs Kenya Commercial Bank Ltd, I had this to say;

“I have perused the various authorities of this court and the High Court in particular relying on the decision of the Court of Appeal in Divecon Ltd Vs Samani [1995 - 1998] EA 48 at 49 which found

‘the words of section 4(1) were clear beyond any doubt and meant that no one had the right or power to bring an action founded in contract after the end of six years from the date on which the cause of action occurred’ ”.

12. It is common cause that the present cause of action arose from a termination of contract of employment on 29th July 2006. In terms of section 4 (1) of the Limitation of Actions Act, Cap 22 of the Laws of Kenya, the suit must be filed within 6 years from the date the cause of action arose. Six (6) years elapsed on 20th July 2012. This suit was filed on 13th May 2014 about eight years from the date the action arose.

13. The Claimant/Applicant awaited for a criminal trial to be concluded before bringing this suit. The Claimant does not allege that there was in place an appellate statutory procedure/or an appellate procedure in terms of an internal Human Resource manual that he followed to appeal the decision to dismiss him that contributed to the delay to bring the suit. Instead, the Claimant awaited the hearing and determination of the Criminal charges against him.

14. In the case of Eunice Chebukwa (supra) I stated further;

“The fact that the Claimant faced criminal charges in criminal case No 1114 of 2002 in which she was initially convicted and fined Kshs 100,000 or twenty four months imprisonment in the alternative but was acquitted upon appeal in Appeal No 43 of 2002 on 21st February 2013 does not constitute a wave of the provisions of section 4(i) of the limitation of Actions Act which governed employment matters prior to the enactment of the Employment Act No 11 of 2007. Accordingly the court lacks jurisdiction to entertain this suit and the same is dismissed”

15. This reasoning applies mutatis mutadis to the facts of this case, whose cause of action arose in 2006, prior to the enactment of The Employment Act No. 11 of 2007.

16. The court lacks jurisdiction to entertain this suit the same having been filed outside the limitation period.

17. I however disagree with the finding in Industrial Cause No 953 of 2010 Benjamin Wachira Ndiithi Vs Public Service Commission & Another that where there is a statutory contractual appeal mechanism which a claimant has taken advantage of upon dismissal/termination the cause of action arises from the date of the dismissal/termination. It is the court’s considered view that the cause of action arises once the internal appeal mechanism has been exhausted be it statutory or contractual.

18. The preliminary objection is accordingly upheld with the result that the suit is dismissed with costs to the Respondent.

Dated and Delivered at Nairobi this 25th day of September 2015

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE