[2014] KEELRC 57 (KLR)
The court held that since the cause of action arose in December 2006, before the Employment Act, 2007 came into effect, the applicable limitation law was the Limitation of Actions Act, Cap 22, which provides a six-year limitation period for contractual claims. The suit, having been filed within six years of the...
Source-derived case information.
- Citation
- [2014] KEELRC 57 (KLR)
- Parties
- Claimant: Emmanuel J. Odero; Respondent: Spin Knit Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1224 of 2010
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Limitation Periods, Employment Contracts, Constructive Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel J. Odero
Claimant
Spin Knit Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim was filed out of time contrary to Section 90 of the Employment Act, 2007.
- 2 Whether the Limitation of Actions Act, Cap 22, applies to the claim given the timing of the cause of action.
Ratio Decidendi
The court held that since the cause of action arose in December 2006, before the Employment Act, 2007 came into effect, the applicable limitation law was the Limitation of Actions Act, Cap 22, which provides a six-year limitation period for contractual claims. The suit, having been filed within six years of the cause of action, was therefore not time-barred. The preliminary objection based on Section 90 of the Employment Act, 2007, was misconceived and dismissed. The matter was ordered to proceed to hearing on its merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the claimant.
- The matter to take its normal course.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 1224 OF 2010
EMMANUEL J. ODERO......................................................CLAIMANT
VERSUS
SPIN KNIT LIMITED....................................................RESPONDENT
Mr. Wesonga for Respondent / Objector
M/S Lumumba for Claimant / Respondent
RULING
1. The Respondent filed a Notice of Preliminary Objection to this suit dated 25th February, 2014.
2. The Objection is on the ground that the Claim was filed out of time contrary to the mandatory provisions of Section 90of theEmployment Act, 2007. The Objection is opposed via a Replying Affidavit of Akoth Lumumbah, the Advocate for the Claimant.
3. The suit was initially filed at the Chief Magistrate’s Court as Case No. 10229 of 2007. At the time the Employment Act was not operational. On 14th June, 2010, the Claimant withdrew the Suit from the Chief Magistrate’s Court and the same was filed at the Industrial Court on 8th October, 2010.
4. From the particulars of Claim, the cause of action arose sometime in December 2006, when the Respondent failed to pay the Claimant’s salary for the month of December, 2006.
5. The Claimant alleges that he was constructively dismissed from employment due to the omission by the Respondent. He claims December salary in the sum of Kshs.34,634. 26, Gratuity for seven (7) years service, payment in lieu of 64 days leave, two months salary, in lieu of notice and compensation for the unlawful dismissal.
6. It is trite law that prior to the enactment and coming into effect of the Employment Act, 2007, limitation of employment disputes was governed by the Limitation of Actions Act Cap 22of theLaws of Kenya.
7. Section 14 thereof provided for limitation period of six (6) years with respect to matters founded on contract. This being the case, this suit was filed well within the limitation period of six (6) years.
8. The objection is misconceived and same is dismissed with costs to the Claimant. The matter to take its normal course.
Dated and Delivered at Nairobi this 10th day of December 2014
MATHEWS N. NDUMA
PRINCIPAL JUDGE