[2014] KEELRC 114 (KLR)
The court held that the applicant's claim was not time-barred under Section 90 of the Employment Act 2007 because the period spent in negotiations between the applicant's former advocates and the employer should be taken into account. The applicant did not accept the settlement terms and promptly instructed new...
Source-derived case information.
- Citation
- [2014] KEELRC 114 (KLR)
- Parties
- Applicant: Hawkins Wagunza Musonye; Respondent: Rift Valley Railways Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 11 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Extension of Time
- Outcome
- application allowed
- Legal Topics
- Limitation Periods, Termination of Employment, Settlement Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hawkins Wagunza Musonye
Applicant
Rift Valley Railways Kenya Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Extension of Time
Legal Issues
- 1 Whether the applicant is barred by limitation under Section 90 of the Employment Act 2007 from bringing a claim after three years from termination.
- 2 Whether the period of negotiations between the applicant's advocates and the employer should be considered in computing the limitation period.
Ratio Decidendi
The court held that the applicant's claim was not time-barred under Section 90 of the Employment Act 2007 because the period spent in negotiations between the applicant's former advocates and the employer should be taken into account. The applicant did not accept the settlement terms and promptly instructed new advocates to pursue the claim once negotiations failed. Therefore, the limitation period had not lapsed, and the applicant was entitled to have his claim filed and registered upon payment of the requisite court fees.
Court Disposition
application allowed
Orders
- The Statement of Claim attached to the application shall be deemed as duly filed upon payment of the requisite court fees.
- The claim be registered and summons issued upon the payment of the requisite court fees.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE INDUSTRIAL COURT AT MOMBASA
MISCELLANEOUS CIVIL APPLICATION NUMBER 11 OF 2014
BETWEEN
HAWKINS WAGUNZA MUSONYE ………………………….………… APPLICANT
VERSUS
RIFT VALLEY RAILWAYS KENYA LIMITED …………...…......RESPONDENT
Ex- parte
RULING
The ex- parte Applicant herein seeks similar orders, as the sought by Mr. Desidery Tyson Otieno Onyango in the Industrial Court at Mombasa Miscellaneous Civil Application Number 12 of 2014. He seeks extension of time within which to bring a Claim against the intended Respondent, Rift Valley Railways Kenya Limited.
The facts are similar in both Applications. Musonye like Onyango was an Employee of the Rift Valley Railways Kenya Limited. After termination on 12th November 2009, he engaged a Firm of Advocates who inititated negotiations with the Employer. The Advocates arrived at an agreement with the Employer that the Employer pays to the Applicant Kshs. 65,000 all-inclusive, in settlement of the dispute. A discharge voucher was prepared.
The Applicant did not agree with the proposed terms of settlement and withdrew instructions from his former Advocates, instructing the current Law Firm to pursue the dispute in Court. He however feels that the period of 3 years from the date of termination has lapsed, and apprehends he is barred from pursuing the Claim, under Section 90 of the Employment Act 2007.
The Court has found the Claim is not time barred, taking into account the period of negotiations. The findings, reasoning, and conclusion in the matter of Desidery Onyango are adopted in this Application, with the result that the Court Orders:-
[a] The Statement of Claim attached to the Application shall be deemed as duly filed upon payment of the requisite Court fees.
[b] The Claim be registered and summons issued upon the payment of the requisite Court fees.
Dated and delivered at Mombasa this 14th day of November 2014
James Rika
Judge