[2017] KEHC 5964 (KLR)
The court held that the claim was filed outside the three-year limitation period prescribed by section 90 of the Employment Act. The fact that the claimant was undergoing criminal prosecution did not suspend or extend the limitation period for filing a claim for wrongful dismissal. As such, the court lacked...
Source-derived case information.
- Citation
- [2017] KEHC 5964 (KLR)
- Parties
- Claimant: Dominic Mwendo Mwanzia; Respondent: Wells Fargo Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 2198 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Suit dismissed as time-barred under section 90 of the Employment Act; liberty granted to seek transfer of malicious prosecution claim.
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Wrongful Dismissal, Malicious Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Mwendo Mwanzia
Claimant
Wells Fargo Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under section 90 of the Employment Act.
- 2 Whether the court has jurisdiction to entertain the claim for malicious prosecution after finding the main claim time-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. The fact that the claimant was undergoing criminal prosecution did not suspend or extend the limitation period for filing a claim for wrongful dismissal. As such, the court lacked jurisdiction to hear the claim, and the suit was dismissed to that extent. Regarding the claim for malicious prosecution, the court found that it could not entertain this claim alone after being dispossessed of jurisdiction by section 90, but granted the claimant liberty to seek transfer of this aspect to an appropriate court, subject to the law of limitation.
Court Disposition
Suit dismissed as time-barred under section 90 of the Employment Act; liberty granted to seek transfer of malicious prosecution claim.
Orders
- The suit is dismissed to the extent that it is time-barred under section 90 of the Employment Act.
- The claimant is at liberty to move the court to transfer the malicious prosecution claim to an appropriate court, subject to the law of limitation.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 2198 OF 2016
DOMINIC MWENDO MWANZIA…….. ……………………CLAIMANT
VERSUS
WELLS FARGO LIMITED………….....….....…..............RESPONDENT
RULING
1. The respondent raised objection in limine that the court lacked jurisdiction to hear the suit on the main ground that by virtue of section 90 of the Employment Act the claim is time barred.
2. Section 90 of the Employment Act provides as follows:
“Notwithstanding the provisions of section 4(1) of the Limitations Actions Act, 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”.
3. This section does not permit extension of time to bring actions founded on the Act or contract of employment after expiry of three years from the date of accrual of the cause of action or in the case of continuing injury after twelve months from cessation thereof.
4. The claimant was dismissed from service on 22nd November, 2010 on the grounds that he was suspected of involvement in theft on the night of 5th November, 2010 as a result of which he was charged with a criminal offence. He was later on 14th August, 2015 acquitted of the charges for lack of evidence. This claim was filed on 27th October, 2016.
5. This is obviously outside the time limited by section 90 above. The fact that the claimant was undergoing prosecution did not prevent him from bringing an action for wrongful dismissal within three years after dismissal. The preliminary objection to this extent succeeds and the suit is hereby dismissed to that extent.
6. Concerning claim for malicious prosecution the court having been dispossessed of jurisdiction by virtue of Section 90 of the Act cannot entertain this claim alone. The claimant shall have the liberty to move the court to transfer this aspect of the claim to an appropriate court subject to the law of limitation.
7. It is so ordered.
Dated at Nairobi this …… day of ………………..2017
Abuodha J. N.
Judge
Delivered this 28th day of April 2017
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge