[2019] KEELRC 2586 (KLR)
The court held that the limitation period for filing employment claims under section 90 of the Employment Act begins to run from the date of termination as communicated in the termination letter, regardless of any ongoing internal appeal or review process. The court emphasized that an internal appeal does not...
Source-derived case information.
- Citation
- [2019] KEELRC 2586 (KLR)
- Parties
- Plaintiff: Japhet Jesanga Songok; Respondent: Attorney General; Respondent: National Intelligence Service; Respondent: Joshua Abuga Mosoti
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 24 of 2019
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit struck out for want of jurisdiction due to limitation
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Limitation Periods, Unlawful Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Jesanga Songok
Plaintiff
Attorney General
Respondent
National Intelligence Service
Respondent
Joshua Abuga Mosoti
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was filed within the limitation period prescribed by section 90 of the Employment Act.
- 2 Whether the accrual of the cause of action is affected by the pendency of an internal appeal against termination.
Ratio Decidendi
The court held that the limitation period for filing employment claims under section 90 of the Employment Act begins to run from the date of termination as communicated in the termination letter, regardless of any ongoing internal appeal or review process. The court emphasized that an internal appeal does not suspend the accrual of the cause of action, and employees are not barred from filing suit while pursuing internal remedies. Since the claimant was dismissed on 31st July 2015 and the claim was filed on 27th June 2019, the suit was filed outside the mandatory three-year limitation period. The court therefore lacked jurisdiction to entertain the suit and struck it out.
Court Disposition
suit struck out for want of jurisdiction due to limitation
Orders
- The suit is struck out for being filed outside the limitation period prescribed by section 90 of the Employment Act.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
CAUSE NO 24 OF 2019
JAPHET JESANGA SONGOK...................................PLAINTIFF
VERSUS
ATTORNEY GENERAL.................................1ST RESPONDENT
NATIONAL INTELLIGENCE SERVICE....2ND RESPONDENT
JOSHUA ABUGA MOSOTI...........................3RD RESPONDENT
R U L I N G
1. An Objection has been raised as to the competence of the present suit in the light of section 90 of the Employment Act which set the limitation period for claims based on the Act and contract of employment to 3 years.
2. The issue between the parties seem to be when the cause of action occurred. The respondent submits that the Claimant was dismissed on 31st July, 2015 and therefore when the claim ought to have been filed on or before 27th July, 2018 however the present claim was filed on 27th June, 2019 which according to the respondent was beyond the limitation period by one year.
3. The Claimant however contended that his second appeal from the dismissal was decided on 1st July,2016 hence time began to run from the date of the outcome of the appeal was known hence the suit was filed was till within time.
4. This Court held in the case of Hilenion Mwabolo v KCB (2013) eKLR that the accrual of a cause of action in a claim emanating from an employment contract takes effect from the date of termination as stated in the letter communicating the termination. The fact that an employee whose employment has been terminated seeks a review or an appeal does not mean that accrual of the cause of action is held in abeyance until a final verdict on the review or appeal. A similar position has been uphelkd by the Court of Appeal.
5. An appeal against termination does not until allowed disturb the decision to terminate. The employees service remains terminated. There is no barrier in law against filing a suit before this Court upon termination while at the same time appealing against a termination through the internal disciplinary mechanism. The Court however does have power to stay a suit pending the outcome of the internal appeal process however nothing prevents an employee aggrieved with the termination from moving the Court within the limitation period.
6. Section 90 of the Employment Act is couched in mandatory terms and once time lapses, the Court lacks the jurisdiction to extend time. This is the more reason why it would be safer to move the Court immediately the termination occurs if aggrieved even if an appeal has been preferred through the internal appeal process.
7. In the circumstances, the suit having been filed outside the set limitation period, the Court lacks jurisdiction to entertain the same. The same is therefore struck out with no order as to costs.
8. It is so ordered.
Dated at Eldoret this day of 2019
Abuodha Jorum Nelson
Judge
Delivered this 28th day of November, 2019
Abuodha Jorum Nelson
Judge
In the presence of:-
……………………………………………for the Claimant and
……………………………………………for the Respondent.
Abuodha J. N.
Judge