[2018] KEELRC 473 (KLR)
The court held that the cause of action for unlawful termination accrued on the date the Claimant was informed of his dismissal, which was 2 February 2011. Section 90 of the Employment Act, 2007 prescribes a three-year limitation period for employment claims, and the Claimant's suit, filed on 29 November 2017, was...
Source-derived case information.
- Citation
- [2018] KEELRC 473 (KLR)
- Parties
- Claimant: George Owino; Respondent: Postal Corporation of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2365 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Claim dismissed as statute/time barred; no order as to costs.
- Judges
- MSA Makhandia
- Legal Topics
- Limitation Periods, Unlawful Termination, Malicious Prosecution, Continuing Injury, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Owino
Claimant
Postal Corporation of Kenya
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim for unlawful termination of employment was filed within the statutory limitation period under section 90 of the Employment Act, 2007.
- 2 Whether the claim for unlawful termination constitutes a continuing injury for purposes of limitation.
- 3 Whether the acquittal in criminal proceedings affects the accrual of the cause of action for unlawful termination.
Ratio Decidendi
The court held that the cause of action for unlawful termination accrued on the date the Claimant was informed of his dismissal, which was 2 February 2011. Section 90 of the Employment Act, 2007 prescribes a three-year limitation period for employment claims, and the Claimant's suit, filed on 29 November 2017, was therefore time barred. The court rejected the argument that the claim constituted a continuing injury or that the limitation period could be extended by reference to the date of acquittal in criminal proceedings. The court further held that Article 159(2)(d) of the Constitution could not override statutory limitation periods, as limitation goes to the jurisdiction of the court....
Court Disposition
Claim dismissed as statute/time barred; no order as to costs.
Orders
- The preliminary objection is upheld.
- The Memorandum of Claim is dismissed for being statute barred.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2365 OF 2017
GEORGE OWINO............................................................CLAIMANT
v
POSTAL CORPORATION OF KENYA....................RESPONDENT
RUILING
1. George Owino (Claimant) was suspended by Postal Corporation of Kenya (Respondent) through a letter dated 11 November 2010.
2. On 2 February 2011, the Respondent wrote to the Claimant informing him that it had been decided to dismiss him from service with effect from 11 November 2010.
3. On an undisclosed date in 2010, the Claimant was charged before the Homa Bay Magistrate’s Court with offences of stealing by servant and obtaining money by false pretences.
4. In a judgment delivered on 2 February 2016, the Magistrates Court acquitted the Claimant on all the counts he was facing.
5. Armed and on the strength of the acquittal, the Claimant instituted legal proceedings against the Respondent on 29 November 2017 and he stated the Issues in Dispute as
a) Unlawful termination of employment
b) Wrongful arrest and malicious prosecution
c) Refusal to pay terminal dues and benefits
d) Compensation for unlawful termination of employment.
6. When the Respondent was served with the Court documents, it filed a Notice of Preliminary Objectionon 22 February 2017 contending that the Cause was time barred. Section 90 of the Employment Act, 2007 and Section 24 of the Postal Corporation of Kenya Act were cited.
7. The Claimant filed a Reply to the Notice of Preliminary Objection on 28 March 2018 and a Further Replying Affidavit to Preliminary Objection on 22 October 2018.
8. The parties also filed elaborate submissions and case law on 13 November 2018 and 30 November 2018, and the Court took arguments on 3 December 2018.
9. It is not in dispute that the Claimant was dismissed through a letter dated 2 February 2011.
10. Because that is the date the Claimant was informed of his dismissal that is the date his cause of action for unlawful termination of employment accrued.
11. The instant proceedings were lodged with the Court on 29 November 2017, some 6 years after the cause of action accrued.
12. Section 90 of the Employment Act, 2007 provides for a limitation period of 3 years in causes of action arising out of employment contracts.
13. That the action was commenced outside the prescribed period is not in doubt.
14. In attempting to overcome the 3 year limitation, the Claimant asserted that limitation was a technical issue curable by invoking the provisions of Articles 50 and 159 of the Constitution and that the cause of action constituted a continuing injury , and therefore accrued on 2 February 2018.
15. The Court does not agree with the proposition that a claim for unfair termination of employment constitutes a continuing injury within the context of section 90 of the Employment Act, 2007.
16. Termination of employment occurs once and is complete once the employee is informed of the fact.
17. And if the Court were wrong on that view, section 90 of the Employment Act, 2007 envisages institution of causes of action comprising continuing injury within 12 months of the cessation.
18. If the injury sustained or occasioned to the Claimant ceased with the acquittal on 2 February 2016, he ought to have commenced legal action on or before 1 February 2017. The Claimant moved the Court in 29 November 2017.
19. The Court will also endorse as applicable in this Cause, the Court of Appeal’s decision in Attorney General & Ar v Andrew Maina Githinji & Ar (2016) eKLR that the learned judge fell into error in holding that time could only run from ….. when the Respondents were acquitted of criminal charges that arose from the same facts and circumstances giving rise to the dismissal.
20. The Claimant further contended that the limitation provision in section 90 of the Employment Act, 2007 should give way to the provision of Article 159(2)(d) of the Constitution.
21. Limitation, as was stated in Divecon v Samani (1995-1998) EA 48 is not merely a procedural issue but goes to jurisdictionand therefore, in the view of the Court, the aforesaid Article cannot be of assistance to the Claimant.
22. Lastly, the Court does not find the suspension letter as amounting to an undertaking/estoppel (in terms of section 39 of the Limitation of Actions Act) by the Respondent that it would await the conclusion of the criminal trial before taking disciplinary action against the Claimant.
23. The upshot of the above is that the Court upholds the preliminary objection and finds that the unfair termination of employment cause of action is statute/time barred.
24. The Claimant also set out a plea of illegal confinement and malicious prosecution.
25. However, the Claimant failed to include all the necessary parties to such a cause of action.
26. The Court therefore orders that the Memorandum of Claim herein be dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 7th day of December 2018.
Radido Stephen
Judge
Appearances
For Claimant Ms. Odembo instructed by Celyne Odembo & Associates
For Respondent Mr. Wachira instructed by Kipkenda & Co. Advocates
Court Assistant Mamo