[2018] KEELRC 1518 (KLR)
The court found that Section 46 of the Kenya Broadcasting Corporation Act is explicit and mandatory, requiring both written notice to the Managing Director and commencement of proceedings within twelve months of the cause of action. The claimant failed to serve the requisite notice and filed the claim more than five...
Source-derived case information.
- Citation
- [2018] KEELRC 1518 (KLR)
- Parties
- Claimant: Jackson K. Mathenge; Respondent: Kenya Broadcasting Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 321 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Limitation Periods, Statutory Notice Requirements, Wrongful Dismissal, Public Service Retirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson K. Mathenge
Claimant
Kenya Broadcasting Corporation
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is incompetent for failure to comply with Section 46 of the Kenya Broadcasting Corporation Act regarding notice and limitation period.
- 2 Whether the claim was filed within the statutory period of twelve months after the cause of action arose.
- 3 Whether the requisite written notice was served upon the Managing Director as required by law.
Ratio Decidendi
The court found that Section 46 of the Kenya Broadcasting Corporation Act is explicit and mandatory, requiring both written notice to the Managing Director and commencement of proceedings within twelve months of the cause of action. The claimant failed to serve the requisite notice and filed the claim more than five years after the cause of action arose. As a result, the claim was incompetent by virtue of limitation and non-compliance with statutory requirements. The preliminary objection was upheld, and the claim was dismissed in its entirety.
Court Disposition
claim dismissed
Orders
- The claim is dismissed in its entirety with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 321 OF 2014
(Before Hon. Justice Hellen S. Wasilwa on 9th July, 2018)
JACKSON K. MATHENGE..................................................CLAIMANT
VERSUS
KENYA BROADCASTING CORPORATION...............RESPONDENT
RULING
1. The Application before Court is the Preliminary Objection dated 1/2/2017. The Respondent/Applicant moved this Court by way of a Preliminary Objection dated 1/12/2017 on the grounds that the Claimant has not complied with the mandatory provisions of the law namely Section 46 of the Kenya Broadcasting Corporation Act (KCB Act) and so the claim should be dismissed in limine.
2. The Claimant/Respondent did not file any response to the Preliminary Objection despite being given 14 days to file a response on 8/3/2018.
3. The Parties were also asked to file submissions on this Application and only the Respondent filed his submissions.
4. The Plaintiff/Claimant first moved Court vide a Plaint dated 29th May 1998 and filed in Court on 3rd June 1998 at Kiambu Law Courts seeking orders for general damages for wrongful dismissal, plus costs and interest.
5. The Defendant filed their defence on 22/6/1998 admitting that the Claimant was in Defendant’s employment from 1990 till 1994 when he was retired in the public interest because of unsatisfactory performance of his duties. They aver that the Claimant was paid all his final dues.
6. At paragraph 8 of the Defendant’s Statement of Defence, they point out that the suit is incompetent for non-compliance with Section 46 of the KBC Act Cap 221 Laws of Kenya and that the Preliminary Objection shall be raised by the Defendant at the hearing therefore.
7. The Defendant have submitted that the Claimant was retired in public interest on 29th March 1994 and he field the case on 3. 5.1998 which was 5 years 1 month after the cause of action arose and this is contrary to Section 46(b) of KBC Act which states that any action under the Act should be brought within 12 months from the time the cause of action arose.
8. Section 46 of the KBC Act Cap 221 states as follows:-
“Where any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution of this Act or of any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect:-
a) The action or legal proceeding shall not be commenced against the Corporation until at least one month after written notice containing the particulars of the claim and of the intention to commence the action or legal proceedings, has been served upon the Managing Director by the Plaintiff or his agent;
b) The action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof”.
9. The provisions of Section 46 above is very explicit and couched in mandatory terms. There is no indication that the Plaintiff served the requisite notice upon the Respondent as required by law. The claim was also filed after the 12 months period as provided herein.
10. I do find that the Preliminary Objection raised has merit. This claim having been filed outside the required period is incompetent by virtue of limitation. I therefore dismiss this claim in its entirety with no order as to costs.
Dated and delivered in open Court this 9th day of July, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No appearance for Parties