[2017] KEELRC 1649 (KLR)
The court found that the applicants failed to rebut the respondent's grounds of opposition and did not establish the legal basis for granting leave to file suit out of time. The court held that the applicants were not under disability as required by section 22 of the Limitation of Actions Act, and the statutory...
Source-derived case information.
- Citation
- [2017] KEELRC 1649 (KLR)
- Parties
- Applicant: Josia Gitari Njeru and 78 Others; Respondent: Kenya Tea Development Agency
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 9 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed with costs
- Judges
- B Ongaya
- Legal Topics
- Limitation of Actions, Terminal Benefits, Leave to File Out of Time, Retrenchment Compensation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josia Gitari Njeru and 78 Others
Applicant
Kenya Tea Development Agency
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to file a suit for terminal benefits out of time.
- 2 Whether the court has jurisdiction to grant leave under the cited legal provisions.
- 3 Whether the applicants have already received all terminal dues, rendering the intended suit invalid.
Ratio Decidendi
The court found that the applicants failed to rebut the respondent's grounds of opposition and did not establish the legal basis for granting leave to file suit out of time. The court held that the applicants were not under disability as required by section 22 of the Limitation of Actions Act, and the statutory limitation period under section 90 of the Employment Act, 2007 had lapsed. Additionally, the applicants had already received their terminal dues, making the intended suit invalid. Consequently, the application for leave was dismissed as lacking merit and legal foundation.
Court Disposition
application dismissed with costs
Orders
- The application by notice of motion dated 09.11.2016 is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
MISCELLANEOUS APPLICATION NO. 9 OF 2016
JOSIA GITARI NJERU AND 78 OTHERS.............. APPLICANTS
-VERSUS-
KENYA TEA DEVELOPMENT AGENCY............ RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 17th March, 2017)
RULING
Josia Gitari and other 78 applicants listed in the notice of motion filed an application on 09. 11. 2015 in person. The applicants prayed for orders:
a) That the applicants be granted leave to file suit against the respondent for claim of terminal benefits out of time.
b) That the honourable court be pleased to give any other orders as it may deem just and fit to grant.
c) That costs of the application to abide the outcome of the intended main suit.
The application was based on the supporting affidavit of Josiah G. Njeru and on the following grounds:
a) That the applicants were employees of the defunct Kenya Tea Development Authority presently Kenya Tea Development Agency.
b) The Authority was dissolved and the applicants were absorbed in the service of the Agency.
c) The applicants and others not being applicants in the present matter filed HCCC No. 948 of 2003 and the judgment was appealed against in Civil Appeal No. 18 of 2007 at Nairobi. The judgement was not favourable to the applicants and in the previous litigation the applicants had failed to pray for terminal benefits as they were misguided despite having had legal representation.
d) The respondent will not be prejudiced in any manner if the application is granted.
e) The time for filing suit to claim for terminal benefits has lapsed.
The respondent opposed the application by filing on 05. 12. 2016 the replying affidavit of John Kennedy Omanga through M/s Lucy Mwai & Company Advocates. The grounds of opposition were as follows:
a) That under section 22 of the Limitations of Actions Act only a person under demonstrated disability can apply to file a suit out of time.
b) In High Court Petition No. 209 of 2011 the court advised the claimants to file their suit in an appropriate court but they failed to do so and the 3 years of limitation under section 90 of the Employment Act, 2007 has since lapsed.
c) The applicants have already been paid their respective terminal dues including salaries earned, 3 months’ pay in lieu of termination notice, severance pay of two months’ salary for each completed year of service and a golden handshake of Kshs.150, 000. 00. The payment was under the retrenchment compensation package so that the intended suit would be invalid.
d) The application is thus, incompetent and an abuse of the court process.
The court finds that the applicants have not rebutted the valid grounds that have been urged for the respondent. The court further finds that the applicants have not established the provisions of law under which the court is enabled to grant leave as was prayed for. Accordingly the court returns that the application will fail.
In conclusion the application by the notice of motion dated 09. 11. 2016 is hereby dismissed with costs.
Signed, datedanddeliveredin court atNyerithisFriday, 17th March, 2017.
BYRAM ONGAYA
JUDGE