[2015] KEELRC 459 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 448 OF 2013

ESTHER GATHONI NGUGI …………………………………………….…… CLAIMANT

VERSUS

CHAI CO-OPERATIVE SAVINGS & CREDIT LTD…………………… RESPONDENT

RULING

1. The claimant, Esther Gathoni Ngugi filed suit on 3rd April 2013. In reply the Respondent filed their Notice of Preliminary Objections on 6th November 2013 on the grounds that;

1. This suit is statute barred pursuant to section 90 of the Employment Act, Cap 226, and Laws of Kenya.

2. This court has no jurisdiction to preside over and or determine the issues raised in this suit.

3. This suit is unsustainable in law, it is a non-starter, incurably defective, a substantive and procedural monumental nullity and an unmitigated abuse of the court process.

2. On 10th March 2014, both parties agreed to file their written submissions with regard to the preliminary objections. On 2nd April 2014 when the parties were to attend court and confirm filing and be allocated a ruling date, the Claimant was absent. The Respondent took new dates and served the Claimant for attendance on 21st September 2015 and despite such service, the Claimant was absent.

3. The Respondent filed written submissions on 21st march 2014.

4. The Respondent submitted that the Claimant was an employee of the Respondent but was terminated on grounds of misconduct on 15th September 2008 and filed suit on 4th april2013 over a claim of unfair termination and unpaid terminal dues. The claim being based on an employment contract is time barred. A plea of limitation being a point of law should be determined instantly as under the principles in Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors ltd [1969] EA, 969.

5. The Respondent thus submitted that the Employment Act came into force on 2nd June 2008 and the cause of action arose on 15th September 2008 hence the claim falls under the provisions of the Employment Act, 2007. Section 90 is mandatory and any claim under the Act must be filed before this court within 3 years as held in Fred Mudave Gogo versus G4S Security Services (K) Ltd [2014] eklrwhere the court held that the Claimant had been terminated but filed suit when time had already laps. In this case, the alleged issue in dispute is clear in that it stems from wrongful termination and time has lapsed for filing such a claim. This suit should thus be dismissed with costs.

Determination

6. The facts and submissions in this case are similar word for word as in the case of Joseph Thuku Muchina versus Chai Co-operative Savings and Credit Ltd, Cause No.453 of 2013 [ruling by this court].Both the Claimant herein and in the other case were employees of the Respondent and though employed in diverse dates, they were terminated on the same date. The suits were filed separately and there was no request to consolidate as the Respondent also filed their preliminary objections in both claims.

7. As in the case of joseph Thuku Muchina,upon taking directions to file submissions with regard to the objections raised by the Respondent with regard to the application of section 90 of the Employment Act, the Claimant has since not made an appearance or filed any submissions.

8. The facts of the case are that the Claimant was employed by the Respondent in May 1990 and in May 2008 she was suspended after it was alleged she was holding stolen cheques but was cleared upon investigations by the Anti-Bank Fraud Unit. The Claimant was later terminated on 15th September 2008 and filed this suit on 3rd April 2013, after a period of 4 ½ years from the date of termination.

9. Section 90 of the Employment Act is couched in mandatory terms thus;

Notwithstanding the provisions of section 4(1) of the Limitation of 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.

10. Such provisions thus stated do not allow the filing of any suit after the lapse of 3 years where such claims relate to employment and labour relations under the provisions of the employment Act, 2007. The current claim therefore must suffer the inevitable, a dismissal. Due to the failure to attend to mitigate, the Claimant shall meet the costs of the respondent.

The objections raised are hereby upheld and the suit dismissed. Costs of the suit awarded to the respondent.

Delivered, dated and signed in open Court at Nairobi this 30th Day of September 2015.

M. Mbaru

JUDGE

In the presence of:

Court Assistant……………………

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