[2015] KEELRC 488 (KLR)
The court found that the claimant's services were terminated on 13th December, 2007, and the claimant appealed to the Managing Director, who responded by letter dated 18th November, 2008. There was no evidence of a contractual or policy provision permitting further appeal to the Permanent Secretary. The court held...
Source-derived case information.
- Citation
- [2015] KEELRC 488 (KLR)
- Parties
- Claimant: David Tarus Samoei; Respondent: National Housing Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 502 of 2011
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- preliminary objection overruled; suit to proceed to trial on merits
- Legal Topics
- Limitation Periods, Unlawful Termination, Continuing Injury, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Tarus Samoei
Claimant
National Housing Corporation
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the claimant's suit is statute barred under section 90 of the Employment Act.
- 2 Whether the failure to hear the claimant's appeal amounted to a continuing injury under the Act.
- 3 Whether the claim was filed within the statutory limitation period.
Ratio Decidendi
The court found that the claimant's services were terminated on 13th December, 2007, and the claimant appealed to the Managing Director, who responded by letter dated 18th November, 2008. There was no evidence of a contractual or policy provision permitting further appeal to the Permanent Secretary. The court held that the final communication on the issue was the letter of 18th November, 2008, and the claimant had three years from that date to file suit. Since the claim was filed on 4th April, 2011, it was within the statutory limitation period under section 90 of the Employment Act. The preliminary objection was therefore overruled, and the suit was allowed to proceed to trial on its...
Court Disposition
preliminary objection overruled; suit to proceed to trial on merits
Orders
- The preliminary objection is overruled.
- The suit shall proceed to trial on merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 502 OF 2011
DAVID TARUS SAMOEI…………………………………………..CLAIMANT
VERSUS
NATIONAL HOUSING CORPORATION……………………RESPONDENT
RULING
1. The respondent in this suit raised as preliminary an objection that the suit herein is statute barred by virtue of section 90 of the Employment Act.
2. According to the respondent, the claimant was terminated from employment on 13th December, 2007 hence the present claim challenging the termination ought to have been filed by 13th December, 2010. Therefore the present action having been filed on 2nd June, 2011 is incompetent and the Court has no jurisdiction to entertain the same.
3. The claimant in opposing the objection argued that the respondent had done a selective reading of the claimant’s claim since at paragraph 6 the claimant averred that on 11th February, 2008 the claimant appealed against his unlawful termination to the Managing Director, of the respondent but the Appeal was never heard or determined nor was any decision of the Board communicated to him. According to the claimant the respondent never denied this averment.
4. The claimant further submitted that section 90 of the Employment Act should be read in its entirety since the question the Court requires to decide was whether the failure to hear an appeal lodged by the claimant amounted to a continuing injury.
5. Section 90 of the Act limits to three years, the period within which an action arising or based on the Act or contract of service generally may be brought. However, for continuing injuries, these must be brought within 12 months next after cessation thereof.
6. The claimant’s services were terminated on 13th December, 2007. He made his appeal to the Managing Director on 28th April, 2008. The respondent’s Managing Director responded to the appeal by a letter dated 18th November, 2008. By a letter dated 22nd October, 2009 the claimant wrote to the Permanent Secretary, Ministry of Housing seeking his intervention over the matter. Whereas in the letter to the Permanent Secretary – Housing, the claimant avers that he had written four letters which had not been responded to by the respondent’s Managing Director, he seems to make no reference to the letter dated 18th November, 2008 by the respondent’s Managing Director either by way of reply to the memorandum of response or submission in opposition to the preliminary objection.
7. Further the claimant did not bring to the attention of the Court any provision either in his contract of employment or the respondent’s human resource manual that permitted further appeal to the Permanent Secretary. Assuming therefore that the letter dated 18th November, 2008 was the respondent’s final communication on the issue, the claimant ought to have commenced the present claim within 3 years from the end of November, 2008 allowance being made for postal delays. For that reason the time would therefore lapse on 30th November, 2011. This matter was filed on 4th April, 2011 hence was still within the 3 year period stipulated under section 90 of the Employment Act. The objection is therefore overruled and the suit shall proceed to trial on merits.
8. It is so ordered.
Dated at Nairobi this 2nd day of October 2015
Abuodha J. N.
Judge
Delivered this 2nd day of October 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge