[2023] KEELRC 2498 (KLR)
The court found that the claimant's cause of action for breach of contract and terminal dues was statute-barred under section 90 of the Employment Act, 2007, as the claim was filed more than three years after the employment relationship ended. The attempt to introduce a right to access information claim through an...
Source-derived case information.
- Citation
- [2023] KEELRC 2498 (KLR)
- Parties
- Applicant: Martin Tedking Isanda; Respondent: Diamond Trust Bank (K) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E024 of 2023
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- cause struck out as statute-barred
- Judges
- S Radido
- Legal Topics
- Limitation of Actions, Breach of Employment Contract, Terminal Dues, Right to Access Information
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Tedking Isanda
Applicant
Diamond Trust Bank (K) Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim for breach of contract and terminal dues is statute-barred under section 90 of the Employment Act, 2007.
- 2 Whether the claim for right to access information is maintainable given the timing and circumstances of the demand.
Ratio Decidendi
The court found that the claimant's cause of action for breach of contract and terminal dues was statute-barred under section 90 of the Employment Act, 2007, as the claim was filed more than three years after the employment relationship ended. The attempt to introduce a right to access information claim through an amended memorandum of claim did not cure the limitation defect, as the claimant failed to demonstrate when and how a demand for the Human Resources Manual was made, and the manual would not assist in reviving a legally stale claim. The court therefore struck out the entire cause with costs to the respondent.
Court Disposition
cause struck out as statute-barred
Orders
- The cause is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
Isanda v Diamond Trust Bank (K) Ltd (Cause E024 of 2023) [2023] KEELRC 2498 (KLR) (18 October 2023) (Ruling)
Neutral citation: [2023] KEELRC 2498 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E024 of 2023
S Radido, J
October 18, 2023
Between
Martin Tedking Isanda
Claimant
and
Diamond Trust bank (K) Ltd
Respondent
Ruling
1. Martin Tedking Isanda (the Claimant) as the legal representative of Isabelah Kenana Kaberia (deceased) sued Diamond Trust Bank (K) Ltd (the Respondent) on 15 May 2023, alleging breach of contract.
2. When served, the Respondent filed on 3 August 2023, a Response and a Notice of Preliminary Objection contending:The Claimant’s employment with the Respondent having terminated on 12th June 2018, the claim herein is time-barred in terms of the provisions of section 90 of the Employment Act, No. 11 of 2007 (the Employment Act).
3. On 17 September 2023, the Claimant filed an Amended Statement of Claim to introduce a cause of action based on the right to access information on top of the initial cause for breach of contract. At the same time, the Claimant filed a Reply to the Response.
4. When the Cause came up for directions on 18 September 2023, the Court directed the parties to file and exchange submissions on the Notice of Preliminary Objection.
5. The Respondent filed its submissions on 29 September 2023 and the Claimant on 13 October 2023.
6. The Court has considered the Notice of Preliminary Objection, the Memorandum of Claim, the Amended Memorandum of Claim, the Response, Reply to Response and the submissions.
7. The Claimant has admitted that the deceased resigned from the employ of the Respondent on 23 May 2018. The Respondent accepted the resignation through a letter dated 12 June 2018.
8. In terms of section 90 of the Employment Act, 2007, the Claimant and/or the deceased had 3 years within which to commence legal action alleging unfair termination of employment and/or breach of the employment contract.
9. Initially, the Claimant sued for breach of contract (terminal dues and lost income). The action should have been initiated within 3 years of separation, but it was commenced on 15 May 2023, more than 3 years after the cause of action had accrued.
10. The cause of action had become stale by the time the Claimant moved the Court.
11. In the Amended Memorandum of Claim, the Claimant introduced another cause of action (right to access information).
12. In the additional cause of action, the Claimant sought an order compelling the Respondent to provide him with a copy of its Human Resources Manual.
13. The Claimant has not disclosed when and how he made a demand to the Respondent to provide him with a copy of the Human Resources Manual to assert breach of right to access information.
14. If the Manual was required to facilitate or pursue the payment of terminal benefits, then at this stage of the proceedings, it would not be of much help to the cause of action. The cause of action has become legally stale.
Conclusion and Orders 15. The Court finds the cause of action herein statute-barred by dint of section 90 of the Employment Act, 2007.
16. The Cause is struck out with costs to the Respondent.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 18TH DAY OF OCTOBER 2023. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Claimant Odindo & Co. AdvocatesFor Respondent Oraro & Co. AdvocatesCourt Assistant Chrispo/Everlyne