[2014] KEELRC 1000 (KLR)
The court found that the claim was filed more than three years after the claimant's summary dismissal, contrary to section 90 of the Employment Act, 2007. In the absence of any opposition or explanation from the claimant, the court upheld the preliminary objection and struck out the memorandum of claim as statute...
Source-derived case information.
- Citation
- [2014] KEELRC 1000 (KLR)
- Parties
- Applicant: Francis Somoni Kamasia; Respondent: Unilever Tea Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 334 of 2013
- Procedural Posture
- Employment Cause / Preliminary Objection Judgment
- Outcome
- preliminary objection upheld; claim struck out as statute barred
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Summary Dismissal, Wrongful Termination, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Somoni Kamasia
Applicant
Unilever Tea Kenya Limited
Respondent
Procedural Posture
Employment Cause / Preliminary Objection Judgment
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act, 2007.
- 2 Whether the memorandum of claim should be struck out for being filed out of time.
Ratio Decidendi
The court found that the claim was filed more than three years after the claimant's summary dismissal, contrary to section 90 of the Employment Act, 2007. In the absence of any opposition or explanation from the claimant, the court upheld the preliminary objection and struck out the memorandum of claim as statute barred.
Court Disposition
preliminary objection upheld; claim struck out as statute barred
Orders
- The memorandum of claim is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 334 OF 2013
FRANCIS SOMONI KAMASIA.....................................CLAIMANT
- VERSUS -
UNILEVER TEA KENYA LIMITED.........................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 16th May, 2014)
JUDGMENT
The Claimant Francis Somoni Kamasia filed the memorandum of claim on 11. 10. 2013 through Omwoyo Masese & Company Advocates.
The claimant prayed for judgment against the respondent for orders as follows:
A declaration that the claimant’s dismissal was wrongful.
The claimant be paid terminal benefits as set out in paragraph 11(i-vii) of the memorandum of claim totalling to Kshs.1,548,017. 20.
The respondent to be ordered to compensate the claimant for wrongful dismissal at the equivalent of twelve (12) months gross salary.
General damages.
Reinstatement to employment.
Costs of the claim.
Interest on the above at court rates.
The honourable court do issue such orders and give such directions as it may deem fit to meet ends of justice.
The respondent Unilever Tea Kenya Limited filed the Notice of Preliminary Objection on 28. 10. 2013 through Murimi, Ndumia, Mbago & Muchela Advocates. The notice stated that at or during the hearing of the claim, the respondent shall raise a preliminary objection on the ground that the claim is statute barred and should be struck out with costs to the respondent.
The preliminary objection was fixed for hearing on 8. 05. 2014 in presence of the Advocates for both parties.
The claimant and the claimant’s counsel were not present on the hearing date. The respondent’s counsel was allowed to prosecute the preliminary objection.
It was submitted that the case was time barred under section 90 of the Employment Act 2007. The section provides as follows:
“90. 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.”
It was submitted that the claimant’s case in paragraph 4 of the memorandum of claim was that he was summarily dismissed on 1. 7.2009 and the suit was filed on 11. 10. 2013 long after lapsing (on 1. 7.2012) of the 3 years as prescribed in section 90 of the Act.
The court has considered the submissions and in absence of any opposition by the claimant, the court finds that the preliminary objection is valid.
In conclusion, the preliminary objection is upheld with orders that the memorandum of claim is struck out with costs.
Signed, datedanddeliveredin court atNakuruthisFriday 16th May, 2014.
BYRAM ONGAYA
JUDGE