[2015] KEELRC 1635 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

MISC. NO. 46 OF 2015

FREDRICK O. ONTERE ……….……………...........................…..……. CLAIMANT

VERSUS

KENYA NATIONAL UNION OF TEACHERS ..…............................ RESPONDENT

Mr. Kouna for Claimant / Applicant

M/S Odhiambo for Respondent

RULING

The Applicant filed Originating Summons dated and on 8th May 2015 on the same date seeking the following orders:

That this Honourable Court be pleased to grant the Applicant leave to file suit out of time against the Respondent;

That the annexed draft Memorandum of Claim be deemed as duly filed after payment of the requisite Court fees.

The Application is based on the grounds set out on the face of the Originating Summons as follows:

That the Applicant stands to suffer irreparable loss in the event that he is not allowed to institute a suit against the Respondent.

That the Respondent unlawfully deducted Kshs.9,800. 000. 00 from the Applicant’s terminal benefits leaving him with a balance of Kshs.3,369,252. 50.

That the cause of action arose on 17th January 2012 when Applicant was given a calculation of the gratuity and terminal benefits vide a letter dated 17th January 2012.

This Application and draft Memorandum of Claim was filed on 8th May 2015, about four (4) months upon expiry of the three years limitation period provided under Section 90 of the Employment Act, 2007.

That the delay in filing the suit was due to circumstances beyond the Applicant’s control and the delay is not inordinate in any event.

That the Court should exercise its inherent jurisdiction and act in the interest of justice and grant leave to the Application to file the suit out of time.

In the supporting Affidavit sworn to by the Applicant on 8th May 2015 the Applicant states that the deduction is with respect to advance withdrawals by the Applicant against his terminal benefits between the year 2007 and 2010 which allegation the Applicant denied. That the deduction denied him lawfully accrued retirement benefits after serving the Respondent for a period of ten (10) years in the position of Treasurer.

That he was not aware that the deductions were wrongful until he read a judgment in Industrial Court at Nairobi, Cause No. 282 of 2012, Geroge Wesonga Ojwang Versus The Kenya National Union of Teachers (KNUT)delivered on 20th December 2013 in which the Respondent was ordered to refund the deductions made on the terminal benefits of the Claimant (a colleague of the Applicant) which had been deducted in a similar manner as happened in the Applicant’s case.

Response

The Respondent filed written submissions to the Application for leave to file suit out of time in which the Respondent submits that the Applicant received a letter dated 17th January 2012, forwarding the Applicant’s tabulated terminal benefits as well as other retirement dues.

The Applicant was paid the terminal benefits in the sum of Kshs.3,369,252. 50 which amount was less advance payments to the Applicant between 31st August 2007 to 30th May 2010 vide cheques enumerated in the document and the electronic transfer in the total sum of Kshs.9,800. 000. 00.

The Respondent submits that the Applicant received all terminal and other dues owed to him and he did not raise any question.

The Applicant was the National Treasurer of the Respondent and he was fully involved in the tabulation and subsequent payments of his terminal dues.

It is therefore strange that the Applicant has brought this Application and claims more than three years since the terminal benefits were paid to him.

Determination

Section 90 of the Employment Act, 2007 provides;

“Notwithstanding the provisions of Section 4(1) of the limitation of Actions Act no Civil action or proceeding 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.”

In the Industrial Court of Kenya at Nairobi, Cause No. 56 of 2014, Joseph Kamau & 468 others V. G4S Security Services (Kenya Limited), I held;

“it is the Court’s considered view that termination of employment does not extinguish payment of work emoluments and terminal benefits due and owing to the employee by fact of service rendered and so long as the emoluments and benefits remain unpaid, the same Constitutes continuing injury or damage within the meaning of Section 90 of the Employment Act, 2007. ”

I still hold this view only subject to the six (6) years limitation period provided under Section 4(1) of the Limitation of Actions Act, Cap 22 of the laws of Kenya so as to put a cap to the words ‘continuing injury or damage’ under Section 90 of the Employment Act, to avoid a situation where litigants purporting to suffer ‘continuing injury or damage’ bring suits after inordinate delay has occurred.

This reasoning is in line with the provisions of Article 27(1) of the Constitution of Kenya, 2010 which provides;

“every person is equal before the law and has the right to equal protection and equal benefit of the law.”

Emphasis mine.

It makes sense therefore that limitation period for causes founded on contract do not exceed the six (6) years enjoyed by all persons under the Limitation of Actions Act, Cap 22 of the Laws of Kenya.

The Employment Act, 2007 is a latter Act to the Limitation of Actions Act, and under Section 90, the law reduced the period within which a cause based on contract is to be filed from six (6) years to three (3) years. However, the proviso opened up an ambiguity as to what constitutes “continuing injury or damage” a matter that needs to be settled by the Court of Appeal, since we have presently conflicting interpretations by the various Judges of the Industrial Court as the contractual period within which the Respondent was to pay the benefits extended to May 2014 and therefore the Applicant could contest any ………………………………… matters arising from the computation of his terminal benefits within the period May 1999 to May 2014.

In the present case, the Court notes that the tabulated terminal benefits, are from the period May 1999 to May 2014.

It is clear from the face of this document that these benefits were due and owing until the said May 2014. Even though the Respondent paid the benefits earlier, than May 2014, this does not negate the fact that, the contractual period within which the Respondent was to pay the terminal benefits extended to May 2014 and therefore the Applicant could contest the quantum payable within the contractual period between May 1999 and May 2014.

Accordingly, the Application has been brought within one (1) year from the expiry of the contractual period for the payment of the terminal benefits, namely May 2014.

I need not restate that the non-payment of the terminal benefits, earned over time and duly accrued to the Applicant constitute continuing injury within the meaning of Section 90 of the Employment Act. The Claim may be filed within one (1) year from the date the injury or damage abated which in this case would be May 2014 the last contractual date of payment as per the filed tabulation.

For these reasons, the suit is not time barred and the draft Memorandum of Claim is deemed as filed subject to payment of requisite fees.

Dated and Delivered at Nairobi this 25th day of September 2015

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE