[2017] KEELRC 776 (KLR)
The court found that the cause of action arose on 11th July 2011, when the claimant discovered that the redundancy was allegedly stage-managed by the respondent hiring a new employee for a similar role. Since the suit was filed on 2nd July 2014, it was within the three-year limitation period prescribed by section 90...
Source-derived case information.
- Citation
- [2017] KEELRC 776 (KLR)
- Parties
- Claimant: Judd Murigi Kiarie; Respondent: SBG Securities Limited (formerly known as CFC Stanbic Financial Services Limited)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1166 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Limitation Periods, Redundancy, Termination of Employment, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judd Murigi Kiarie
Claimant
SBG Securities Limited (formerly known as CFC Stanbic Financial Services Limited)
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statutorily time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the cause of action arose on the date of termination or on the date the claimant discovered the alleged breach.
- 3 Whether the preliminary objection raises a pure point of law suitable for determination at this stage.
Ratio Decidendi
The court found that the cause of action arose on 11th July 2011, when the claimant discovered that the redundancy was allegedly stage-managed by the respondent hiring a new employee for a similar role. Since the suit was filed on 2nd July 2014, it was within the three-year limitation period prescribed by section 90 of the Employment Act, 2007. Furthermore, the court held that if there is a dispute as to when the cause of action arose, the issue is not a pure point of law and cannot be determined at the preliminary stage. Accordingly, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1166 OF 2014
JUDD MURIGI KIARIE….....................................................CLAIMANT
VERSUS
SBG SECURITIES LIMITED (FORMERLY KNOWN AS)CFC
STANBIC FINANCIALSERVICES LIMITED................RESPONDENT
Mr. Mwaki for respondents/objector
Mr. Maluti for claimant
RULING
1. The respondent filed a preliminary objection to the suit on grounds that the suit is statutorily time-barred by dint of section 90 of the employment Act, 2007.
2. Section 90 of the Act reads as follows;
“Notwithstanding the provisions of Section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”
3. The suit was brought by a memorandum of claim on 2nd July 2014.
4. The cause of action as per paragraph 6 of the memorandum of claim arose on 7th September 2010 when the employment of the claimant was terminated for reasons of redundancy.
5. The claimant further avers that on or about 11th July 2011, despite declaring the position he held of Head of Research redundant, the claimant learnt that the respondent had proceeded to hire a new Head of ‘Equity’ Research, whose duties and/or job description were similar or substantially similar to the claimant’s former duties and/or job description.
6. The claimant thus became aggrieved by the conduct of the respondent hence proceeded to file this suit.
7. From the facts of the case, the cause of action arose on 11th July 2011 when the claimant discovered that the redundancy which he had hitherto accepted was stage managed as described in the particulars of mischief, malice and/or breach.
8. The suit was thus filed within three (3) years from the date the cause of action arose and is not statutory barred.
9. In any event, if there is a dispute as to the date the cause of action arose, the objection raised is not a pure point of law and cannot in that event, which is denied, be determined at the preliminary stage. See Mukhisa Biscuits Manufacturers Ltd. Vs. West End Distributors Ltd. [1969] E.A. 696.
10. For these reasons, the preliminary objection is dismissed with costs in the cause.
Dated, signed and delivered at Nairobi this 25th day of August, 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE