[2014] KEELRC 372 (KLR)
The court found that the claimant's pleadings established the existence of a continuing injury or damage, as the respondent withheld the claimant's funds up to the time of filing the suit. Therefore, the matter falls within the exception for continuing injury under Section 90 of the Employment Act. The suit was not...
Source-derived case information.
- Citation
- [2014] KEELRC 372 (KLR)
- Parties
- Claimant: Hesbone Gavunji Mafunya; Respondent: Kenya Commercial Bank Ltd.
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 691 of 2013
- Procedural Posture
- Employment Cause / Ruling on Limitation of Action Objection
- Outcome
- Objection on limitation dismissed; suit to proceed.
- Legal Topics
- Limitation Periods, Continuing Injury, Employment Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hesbone Gavunji Mafunya
Claimant
Kenya Commercial Bank Ltd.
Respondent
Procedural Posture
Employment Cause / Ruling on Limitation of Action Objection
Legal Issues
- 1 Whether the claim was filed within the limitation period prescribed under Section 90 of the Employment Act.
- 2 Whether the injury or damage alleged by the claimant constitutes a 'continuing injury' under Section 90 of the Employment Act.
Ratio Decidendi
The court found that the claimant's pleadings established the existence of a continuing injury or damage, as the respondent withheld the claimant's funds up to the time of filing the suit. Therefore, the matter falls within the exception for continuing injury under Section 90 of the Employment Act. The suit was not time-barred and was properly before the court.
Court Disposition
Objection on limitation dismissed; suit to proceed.
Orders
- The suit is not time-barred and will proceed to hearing.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 691 OF 2013
HESBONE GAVUNJI MAFUNYA ……………...…… CLAIMANT
VERSUS
KENYA COMMERCIAL BANK LTD. ……….….. RESPONDENT
Mr. Kimani Njoroge for Respondent / Applicant
Mr. Ochalo for Claimant
RULING
1. The Memorandum of claim was filed on 15th May 2013.
2. The cause of action arose on 3rd June 2009 when the termination of employment of the Claimant took place. The claim was therefore filed 3 years and 11 months after the date the cause of action arose.
3. No application for extension of time was made prior to the filing of the suit or after.
4. Section 90 of the Employment Act, No. 11of2007 governs, limitation of actions for suits based on employment contracts.
The Section reads as follows:
“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.”
5. The Claimant was charged in criminal case number 307 of 2009 before the Chief Magistrate Court and was acquitted on 3rd November 2011. The Criminal case was at the behest of the Respondent. The Respondent had also frozen the Claimant’s bank account No. [Particulars withheld] Kenya Commercial Bank Moi Avenue holding Kshs.1,733,000/= which the Respondent has failed to release inspite of demands by the Claimant.
This amount was withheld by the Respondent up until the time of filing the suit.
6. It is clear from the pleadings of the Claimant that the injury complained of by the Claimant was ‘continuing injury or damage’ within the meaning of Section 90of theEmployment Act.
This matter is therefore not caught by the doctrine of laches and was filed within time.
The suit will take its normal course.
Dated and Delivered at Nairobi this 11th day of July, 2014.
MATHEWS N. NDUMA
PRINCIPAL JUDGE