[2015] KEELRC 1564 (KLR)
The court found that the applicant's claims for unpaid salary, leave, notice, and gratuity are statutory in nature and constitute minimum obligations by the employer to the employee. The court held that failure to pay these amounts amounts to a continuing injury or damage within the meaning of Section 90 of the...
Source-derived case information.
- Citation
- [2015] KEELRC 1564 (KLR)
- Parties
- Applicant: George Hilton Katama; Respondent: Mombasa Container Terminal Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 15 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- Application granted. Leave to file suit out of time allowed.
- Legal Topics
- Limitation of Actions, Employment Contracts, Continuing Injury, Statutory Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Hilton Katama
Applicant
Mombasa Container Terminal Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file the suit out of time under Section 90 of the Employment Act, 2007.
- 2 Whether the claims for salary, leave, notice, and gratuity constitute continuing injury or damage for purposes of limitation.
Ratio Decidendi
The court found that the applicant's claims for unpaid salary, leave, notice, and gratuity are statutory in nature and constitute minimum obligations by the employer to the employee. The court held that failure to pay these amounts amounts to a continuing injury or damage within the meaning of Section 90 of the Employment Act, 2007. Since the injury was ongoing and had not abated at the time of filing, the application to file the suit outside the three-year period was granted as it fell within the proviso to Section 90.
Court Disposition
Application granted. Leave to file suit out of time allowed.
Orders
- Leave is granted to the applicant to file the suit out of time.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
MISC. APPL. NO. 15 OF 2012
GEORGE HILTON KATAMA ………… PLAINTIFF/APPLICANT
VERSUS
MOMBASA CONTAINER TERMINAL
LIMITED……………………………..DEFENDANT/RESPONDENT
M/s Ashubwe for the Claimant
Mr. Aitsi for the Respondent
RULING
1. The Application dated 27th July, 2012 seeks leave to file the suit out of time. The Application is opposed through the Replying Affidavit of Warui Mwangi dated 16th April, 2013.
2. The Applicant was dismissed from employment on 26th June, 2009 and the application was filed on 2nd August, 2012 three years and two months after the cause of action arose.
3. The Claimant seeks payment of salary for the month of June, 2009; payment in lieu of 21 days leave, payment of one (1) month in lieu of Notice and payment of service gratuity for the 18 years worked.
4. In terms of Section 90 of the Employment Act, 2007 claims arising from a contract of employment must be filed within one (1) but “in case of continuing injury or damage within twelve months next after the cessation thereof.”
5. The claims set out are statutory in nature and constitute minimum obligations by the employer to the employee so that, failure to pay salary for days worked; to pay in lieu of leave days worked; to pay gratuity accrued for a period of 18 years constitute continuous injury or damages for purpose of Section 90.
6. This claim was therefore brought while the said injury was ongoing and had not abated.
7. The Application to file the suit outside the three year period is therefore granted since the case falls within the provision to Section 90.
Dated and Delivered at Nairobi this 13th day of March, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE