[2016] KEHC 6190 (KLR)
The court held that the claim for payment of a decretal sum is not time barred under section 90 of the Employment Act, 2007, as the provision does not apply to matters arising before the law was enacted. Furthermore, the non-payment of the decretal sum, provident fund contributions, and SACCO dues constitutes a...
Source-derived case information.
- Citation
- [2016] KEHC 6190 (KLR)
- Parties
- Applicant: John Kahiato Bari; Applicant: James Waciuri; Applicant: Benard Kanada; Applicant: Jackson Warui; Respondent: New Kenya Co-operative Creameries Limited; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 1299 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Limitation of Actions, Decretal Sum Enforcement, Provident Fund Contributions, Sacco Dues, Continuous Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kahiato Bari
Applicant
James Waciuri
Applicant
Benard Kanada
Applicant
Jackson Warui
Applicant
New Kenya Co-operative Creameries Limited
Respondent
The Attorney General
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim for payment of a decretal sum is time barred under section 90 of the Employment Act, 2007.
- 2 Whether claims for provident fund contributions and non-remitted SACCO dues are time barred or can be determined as preliminary objections.
Ratio Decidendi
The court held that the claim for payment of a decretal sum is not time barred under section 90 of the Employment Act, 2007, as the provision does not apply to matters arising before the law was enacted. Furthermore, the non-payment of the decretal sum, provident fund contributions, and SACCO dues constitutes a continuous injury to the claimants, and as such, these claims are not time barred. The court also found that issues relating to provident fund contributions and SACCO dues are matters of fact that must be canvassed at the hearing and are not suitable for determination as preliminary objections. Consequently, the preliminary objection raised by the 1st Respondent was dismissed with...
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs.
- The matter to take its normal course.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1299 OF 2013
JOHN KAHIATO BARI)All suing on behalf of themselves and as
JAMES WACIURI) representatives of all former employees
BENARD KANADA) of the cooperative Creameries Limited as per
JACKSON WARUI) the schedule of names……………..CLAIMANTS
VERSUS
NEW KENYA CO-OPEERATIVE
CREAMERIES LIMITED……………………………1ST RESPONDENT
THE ATTORNEY GENERAL ……………..……. 2ND RESPONDENT
M/s Abok for 1st Respondent/Objector
Mr Namada for Claimant
RULING
The 1st Respondent raised a preliminary objection to the suit to the effect that the same is time barred by the virtue of section 90 of the Employment Act 2007.
The suit against the 1st and 2nd Respondents arise from a failure by the 1st Respondent to pay the Claimant’s proceeds of a judgement and decree in the case between Kenya Union of Commercial Food & Allied Workers –Vs- Kenya Co-operative Creameries Ltd (the Predecessor of the 1st Respondent) being Industrial Cause No 24 of 1998.
In the judgement the court found that the Claimants were entitled to payment of Kshs 109,640,482/= being their terminal benefits. The Claimants have sought the payment in vain.
There cannot be a time bar in payment of a decretal sum in terms of section 90 of the Employment Act, 2007. In any event the provision is not applicable to a matter that arose before the law was enacted.
The non-payment constitutes a continuous injury to the claimants and the same is not time barred.
With regard to contribution to the provident fund in the sum of Kshs 2,027,622. 5 and non-remitted SACCO dues in the sum of Kshs 92,803,451 these are matters of fact that will be canvassed at the hearing of the suit and are not pure points of laws to be canvassed as preliminary objections. In any event if indeed funds held in trust by the 1st Respondent on behalf of its employees continue to be unremitted to the lawful beneficiaries, there cannot be statutory bar to a claimant for the funds if unlawfully held by the Respondent.
This constitutes a continuous injury in terms of section 90 of the Employment Act 2007.
For these reasons the preliminary objection is misconceived and is dismissed with costs. Matter to take its normal course.
Dated and delivered at Nairobi this 18th day of March 2016.
MATHEWS N. NDUMA
PRINCIPAL JUDGE