[2016] KEELRC 996 (KLR)
The court found that although the Claimant was dismissed on 31st August 2012, he promptly lodged an internal appeal, which was not determined until 19th June 2015. The court held that the cause of action accrued upon communication of the appeal decision, not at the date of dismissal. Since the claim was filed on...
Source-derived case information.
- Citation
- [2016] KEELRC 996 (KLR)
- Parties
- Claimant: David Gachathi Thuo; Respondent: Postal Corporation of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 1932 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- preliminary objection dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Limitation of Actions, Unfair Dismissal, Employment Appeals, Jurisdiction, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Gachathi Thuo
Claimant
Postal Corporation of Kenya
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the claim is time barred under Section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to hear the matter given the alleged limitation period.
- 3 Whether the pendency of an internal appeal and related criminal proceedings affects the accrual of the cause of action.
Ratio Decidendi
The court found that although the Claimant was dismissed on 31st August 2012, he promptly lodged an internal appeal, which was not determined until 19th June 2015. The court held that the cause of action accrued upon communication of the appeal decision, not at the date of dismissal. Since the claim was filed on 30th October 2015, it was within the three-year limitation period prescribed by Section 90 of the Employment Act, 2007. The court therefore concluded that the preliminary objection on limitation was without merit and dismissed it, affirming its jurisdiction to hear the matter.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The matter shall proceed to hearing on the merits.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
CAUSE NO. 1932 OF 2015
(Before Hon. Justice Hellen S. Wasilwa on 20th June, 2016)
DAVID GACHATHI THUO…………………........…........................ CLAIMANT
VERSUS
POSTAL CORPORATION OF KENYA ……………….……. RESPONDENT
RULING
This ruling is on a Preliminary Objection raised by the Respondent via Notice dated 5th April 2016. The substance of the objection is as follows:
That this Honorable Court lacks jurisdiction to hear and determine this matter by virtue of Section 47 and 90 of the Employment Act, 2007 as it is time barred.
That the Claim is bad in law and an abuse of the Court process and ought to be struck out with costs to the Respondent.
The Claimant has filed a response via a Replying Affidavit dated 3rd May 2016 and dated 6th May 2016; he depones:
“That the Memorandum of Claim is dated 31st August 2015 but that it was filed within the time limitations imposed by the Employment Act & Limitations of Actions Act”.
They have also raised issues of gross violation of his rights under Article 27, 28, and 29 of the Constitution and that there is no time limitation for the enforcement of fundamental rights and freedoms. He reiterates that the Respondent has victimized, intimidated, harassed, and suspended him without pay and refused to give him a fair hearing yet the allegations that had been meted against him were false and he got an acquittal.
He avers that in the response to the memorandum filed by the Respondent, the issue of time barred has not been raised. Moreover, it is after his acquittal that he made the effort to have the issue of his dismissal resolved amicably but the Respondent declined to do so.
The Respondent submitted that the Claimant herein was dismissed on the 31. 08. 2012 and the claim was filed on the 30. 10. 2015 which is more than three years after the cause of action arose.
They submit that the Claimant’s issue of his acquittal does not apply in this instance and does not in any way affect the limitations of actions clause.
The Culminant submitted that after his dismissal he lodged an appeal where he was told that his matter could not be heard until the criminal case brought against him was heard and determined. Upon determination, the Court agreed that the allegations against him were a conspiracy to conceal rot within the corporation, the Claimant wrote to the Respondent inquiring of the fate of his appeal in view of his acquittal.
They pray that the objection be dismissed with costs.
The issue for determination is whether this matter is time barred.
Section 90 of Employment Act states as follows:
“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), 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”.
The Claimant avers that he was dismissed by the Respondent on 31. 8.2012 but that he appealed the dismissal. The appeal had been tonged on 4. 10. 2012 (DGT. 7).
There was a hearing of this appeal on November 2012 and it was decided that the appeal abide the criminal proceedings which were completed and Appendix DGT 10 is a copy of judgment dated 23. 10. 2014 when Claimant wrote to Respondent on 14. 1.2015 (DG 10) on the criminal proceedings. The Respondent replied vide DGT 11 on 19. 6.2015 communicating the decision of the appeal.
It is this Court’s finding that as the appeal had not been determined, the cause of action started to rein when a decision was made on the Claimant’s appeal on 19. 6.2015. This claim was filed on 30. 10. 2015 and therefore in line with Section 90 of Employment Act above.
I find that the Preliminary Objection has no merit and I therefore dismiss it accordingly.
Read in open Court this 20th day of June, 2016.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Wandeto for Claimant Respondent
No appearance for Applicant