[2021] KEELRC 1607 (KLR)
The court found that the Claimant's cause of action arose on 29th July 2016, the date of her resignation, which was accepted by the Parliamentary Service Commission. Applying Section 90 of the Employment Act, the court determined that the claim had to be filed within three years from that date. Since the suit was...
Source-derived case information.
- Citation
- [2021] KEELRC 1607 (KLR)
- Parties
- Claimant: Eunice Shamia Lumallas; Respondent: Parliamentary Service Commission; Respondent: Another
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 415 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Constructive Dismissal, Jurisdiction of Court
- 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
Eunice Shamia Lumallas
Claimant
Parliamentary Service Commission
Respondent
Another
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under Section 90 of the Employment Act.
- 2 Whether the cause of action arose on the date of communication of the employer's decision or on the date of constructive dismissal.
- 3 Whether the court has jurisdiction to hear the claim.
Ratio Decidendi
The court found that the Claimant's cause of action arose on 29th July 2016, the date of her resignation, which was accepted by the Parliamentary Service Commission. Applying Section 90 of the Employment Act, the court determined that the claim had to be filed within three years from that date. Since the suit was filed on 26th July 2019, it was within the statutory limitation period. The preliminary objection raised by the Respondents, asserting that the claim was time-barred, was therefore without merit. The court held that the suit was validly before it and dismissed the preliminary objection with costs to the Claimant.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the Claimant.
- The court will assign a date for pre-trial compliance and set a hearing date.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 415 OF 2019
EUNICE SHAMIA LUMALLAS....................................CLAIMANT
VERSUS
PARLIAMENTARY SERVICE
COMMISSION &ANOTHER.................................RESPONDENTS
RULING
1. The Respondents raise a preliminary objection to the suit on the grounds that the claim herein is time barred as the cause of action arose on 14th October 2013 when the decision of the Parliamentary Service Commission was communicated to the Claimant. The Respondents assert by virtue of the provisions on limitation under Section 90 of the Employment Act the Court lacks jurisdiction to hear the matter as the claim is barred by statute.
2. The Claimant on her part contends that the suit against the Respondents was brought to this Honourable Court within the time frame prescribed by statute. The Claimant asserts that the employment was terminated on 29th July 2016 by way of constructive dismissal. She cited the case of Joseph Aleper &Another vLodwar Water and Sanitation Company Limited [2015] eKLR and argued that her constructive dismissal was due to the wrongs meted out to her by the employer and that the cause of action arose from the date of dismissal and that she was within the period prescribed by statute to seek redress from the courts. She relied on the case of David Wanjau Muhoro vOl Pejeta Ranching Limited [2014] eKLRwhere the Court held that all benefits accruing to the Claimant should be paid in full upon termination and that they must be enforced when the relationship comes to an end. Further the Court held that the different claims making up the claim would only suffer limitation if the claim itself is statutory barred. She asserts that the preliminary objection has no basis and thus must be dismissed with costs.
3. The Respondents in their defence under paragraph 35 contend that the Claimant by her own volition resigned on 29th July 2016 and that the Parliamentary Service Commission accepted her resignation. By a simple arithmetic the Claimant’s cause of action in regard to her employ arose on 29th July 2016. Her suit ought therefore have been filed on or before 29th July 2019. She filed the suit on 26th July 2019 and therefore the suit before the Court was three days shy of limitation under Section 90 of the Employment Act. The suit is thus validly before the Court. In the premises the preliminary objection raised by the Respondents is baseless and as a result stands dismissed with costs to the Claimant. After this Ruling the Court will assign a date for pre-trial compliance and subsequently set a hearing date.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF JANUARY 2021
NZIOKI WA MAKAU
JUDGE