[2016] KEELRC 1558 (KLR)
The court found that the claimant's cause of action arose in 1992, and the claim was filed in 2015, over 23 years later, without leave of court. The applicable law required such claims to be filed within six years (Limitation of Actions Act) and, under the repealed Trade Disputes Act, to be reported to the Minister...
Source-derived case information.
- Citation
- [2016] KEELRC 1558 (KLR)
- Parties
- Claimant: Johnson N. Konga; Respondent: Moi University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 336 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed as statute barred
- Judges
- HS Wasilwa
- Legal Topics
- Limitation of Actions, Termination of Employment, Trade Disputes Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson N. Konga
Claimant
Moi University
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under Section 4(1) of the Limitation of Actions Act.
- 2 Whether the claim is statute barred under Section 90 of the Employment Act.
- 3 Whether the claim is incompetent for failure to comply with Section 4(4) of the Trade Disputes Act (now repealed).
Ratio Decidendi
The court found that the claimant's cause of action arose in 1992, and the claim was filed in 2015, over 23 years later, without leave of court. The applicable law required such claims to be filed within six years (Limitation of Actions Act) and, under the repealed Trade Disputes Act, to be reported to the Minister within twenty-eight days. The claimant failed to comply with both statutory requirements. The court held that the preliminary objection had merit, the claim was statute barred, and thus fatally defective. Consequently, the claim was dismissed for being time barred.
Court Disposition
claim dismissed as statute barred
Orders
- The claim is dismissed for being time barred.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 336 OF 2015
(Before Hon. Justice Hellen S. Wasilwa on 15th March, 2016)
JOHNSON N. KONGA ………………………………………….…CLAIMANT
VERSUS
MOI UNIVERSITY ………………………….…….…………… RESPONDENT
RULING
The Preliminary Objection before Court has been raised by the Respondent on the following grounds:
The Claimant’s suit offends the Provisions of Section 4(1) of the Limitation of Actions Act and thus is statute bared and fatally defective.
The claim offends the Provisions of Section 4(4) of the Trade Disputes Act Cap 234 Laws of Kenya (now repealed).
The suit offends the Provisions of Section 90 of Employment Act and thus is statute barred and fatally defective.
The claim was filed on 6th March 2015 without leave of Court having been sought more than 23 years after the termination of the Claimant’s employment and is thus incompetent.
The Respondent on the other hand opposed this Preliminary Objection. He filed his submissions on 14/1/2016 in person and contends that he worked for the Respondents diligently until 1992 November when clashes broke out and many people were displaced. The claimant reported back on duty in June 1993 but was not allowed to resume his normal duties.
The Respondent avers that the Applicants kept him in limbo and never paid him salary. He also contends he was underpaid during the said period and was never issued with a certificate of service.
The Claimant didn’t address the issues raised in the Preliminary Objection per se. He went straight to arguing his case.
I have looked at pleadings filed herein. I note that the Claimant states that he was terminated in 1992 when there were tribal clashes. This means that the cause of action occurred in 1992. He filed this claim on 5. 3.2015; 23 years later and without seeking leave of this Court. In any case, this claim arose during the dispensation of the repealed labour laws which envisaged that a claim of termination of this nature would first be handled by Labour Office.
Section 4(4) of Cap 234 – Trade Disputes Act states as follows:
“Any trade dispute involving the dismissal of an employee on the termination of a contract of employment shall be reported to the Minister within twenty eight days of the dismissal or termination of employment”.
The Claimant never reported this dispute. As provided for under Section 4(1) of Cap 22 – this claim being founded on contract should have been filed within 6 years.
I do find that the Preliminary Objection has merit. I find the claim time barred and I dismiss it accordingly.
Each party will bear their costs.
Read in open Court this 15th day of March, 2016
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Claimant – present in person
Miss Kanyori holding brief for Oyombe for Respondent- Present