[2016] KEELRC 1630 (KLR)
The court found that the claimant's cause of action arose on 15 March 2012, the date of his summary dismissal. Under Section 90 of the Employment Act, the claimant had three years from that date to file suit. The suit was filed on 11 May 2015, after the expiry of the statutory limitation period. As a result, the...
Source-derived case information.
- Citation
- [2016] KEELRC 1630 (KLR)
- Parties
- Claimant: Josphat Mavonga; Respondent: K. K. Security Group of Companies
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 310 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit struck out for being time barred
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Summary Dismissal, Wrongful Termination, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Mavonga
Claimant
K. K. Security Group of Companies
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the suit is time barred under the Employment Act.
- 2 Whether the dismissal of the claimant was unfair.
- 3 Whether the claimant is entitled to the reliefs sought.
Ratio Decidendi
The court found that the claimant's cause of action arose on 15 March 2012, the date of his summary dismissal. Under Section 90 of the Employment Act, the claimant had three years from that date to file suit. The suit was filed on 11 May 2015, after the expiry of the statutory limitation period. As a result, the court held that it lacked jurisdiction to entertain the matter, and the suit was time barred. The court therefore struck out the suit without considering the merits of the claim or the fairness of the dismissal.
Court Disposition
suit struck out for being time barred
Orders
- The suit is struck out with no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 310 OF 2015
JOSPHAT MAVONGA………………………….…..........…..CLAIMANT
VS
K. K. SECURITY GROUP OF COMPANIES…….……..RESPONDENT
JUDGMENT
Introduction
1. The claimant was employed by the respondent on 20. 9.2008 as a Security Guard and worked as such upto October 2011 when he and other fellow guards were given unpaid leave due to reduction of work. That when he reported back to work on 1. 11. 2011 as required, the HR manager told him that there was no work and directed him to continue reporting to the office daily to try his lack for an assignment. He was however not receiving any pay and after sometime he decided to go to his rural home to deal with an emergency. In April 2012 he went back to the respondent’s office but he was given a dismissal letter dated 15. 3.2012 and asked to explain his absence from work in writing. He did so by his letter dated 10. 4.2012 but the respondent retained her earlier decision to dismiss him. The claimant then brought this suit on 11. 5.2015 seeking to recover terminal dues plus compensation for wrongful termination of his employment.
2. The respondent has denied liability for wrongful termination and avers that the claimant was properly dismissed for absenteeism after he deserted without any justifiable cause. That she gave the claimant a chance to explain his absence in writing but his explanation was unsatisfactory.
3. The suit was heard on 8. 10. 2015 when the claimant testified as Cw1 and the respondent called Sofia Jan Mohammed as Rw1. Thereafter both parties filed written submissions.
Analysis and Determination
4. There is no dispute that the claimant was employed by the respondent as Security Guard and was summarily dismissed on 15. 3.2012 for deserting work without any justifiable reason. There is also no dispute that he was only given a chance to defend himself in writing after the dismissal had already been done. The issues for determination are:
a) Whether the suit is time barred,
b) Whether the dismissal of the grievant was unfair
c) Whether the prayers sought should issue.
Time barred suit
5. The claimant pleaded that he worked for the respondent until November 2011 when he was dismissed. However in his testimony he stated that he never received any dismissal letter until April 2012, when he went back. On the other hand the respondent has pleaded and maintained in her evidence that the dismissal of the claimant was done on the 15. 3.2015. However her counsel has submitted that whether the cause of action arose in November 2011 or 15. 3. 2012, this suit is time barred and the court should not grant the reliefs sought.
6. After careful consideration of the pleadings and the evidence placed before it, this court finds no difficulty in finding and holding that this suit is time barred. Section 90 of the Employment Act (EA) limits the time within which to file a suit based on employment contract to 3 years from the time when the cause of action arose or in case of continuing breach, default or injury, 12 months from the time when the breach, default or injury ceased. In this case the 3 year window for the grievant closed on 15. 3.2015. The cause of action having expired, this court lacks jurisdiction over it. Consequently the court must down its tools for lack of jurisdiction to determine the suit on merits.
Disposition
7. For the reasons stated above, the suit is struck out with no orders as to costs.
Signed, Dated and delivered this 26th day of February, 2016
ONESMUS MAKAU
JUDGE