[2018] KEELRC 1320 (KLR)
The court found that the claimant's cause of action arose on 12 September 2013, the date of termination, or at the latest, 16 October 2013, when the claimant received the termination letter. Section 90 of the Employment Act prescribes a three-year limitation period for instituting such claims. The suit was filed on...
Source-derived case information.
- Citation
- [2018] KEELRC 1320 (KLR)
- Parties
- Claimant: Kelvin Wanjala Macmatara; Respondent: Co-operative Bank of Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 2150 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Suit struck out as statute barred.
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Unfair Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Wanjala Macmatara
Claimant
Co-operative Bank of Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under section 90 of the Employment Act.
- 2 Whether the claim was filed within the prescribed limitation period.
Ratio Decidendi
The court found that the claimant's cause of action arose on 12 September 2013, the date of termination, or at the latest, 16 October 2013, when the claimant received the termination letter. Section 90 of the Employment Act prescribes a three-year limitation period for instituting such claims. The suit was filed on 18 October 2016, which was outside the statutory limitation period. The court held that the suit was therefore statute barred and could not be entertained, leading to its dismissal.
Court Disposition
Suit struck out as statute barred.
Orders
- The suit is struck out for being filed outside the limitation period set by section 90 of the Employment Act.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE. NO. 2150 OF 2016
KELVIN WANJALA MACMATARA...............................CLAIMANT
VERSUS
CO-OPERATIVE BANK OF KENYA LIMITED.......RESPONDENT
RULING
Introduction
1. The Claimant brought this suit on 18. 10. 2015 alleging that he was unfairly dismissed by the respondent on 12. 9.2013. He sought to recover one month salary in lieu of notice and salary compensation for unfair termination.
2. In response the respondent raised Preliminary Objection to the suit on ground that the same was statute barred by dint of section 90 of the Employment Act. The Preliminary Order was disposed of by written submissions which I have carefully considered alongside the pleadingsfiled. The issue for determination herein is whether the suit is statute barred.
Section barred suit
3. Section 90 of the Employment Act provides that:
“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 the case of continuing injury or damage within twelve months next after the ceasation thereof.”
4. There is no dispute that the suit before the Court is based on a contract of service under the Employment Act. There is further no dispute that the cause of action arose on 12. 9.2013 when the contract of service was terminated by the letter dated even date or 16. 10. 2013, when he received the said letter. Under paragraph 4 of the statement of claim, the claimant pleaded, thus:
“4. On or about 16thOctober 2013, the claimant received a letter dated 12. 9.2013 from the respondent informinghim that it had terminated his services on account ofalleged fraudulent activities purported to have beenmade by the claimant.”
The said pleading are clear that the termination was done on 12. 9.2013 and communicated on 16. 10. 2013. The latest time for filing suit in respect of the said cause of action was therefore 16. 10. 2016 when the window of three years under section 90 of the Act closed. Consequently, the suit being filed on 18. 10. 2016 is statute barred by dint of section 90 of the Act.
Conclusion and Disposition
6. This being an obvious case of a suit filed outside the limitation period set out by an express statute, I strike it out with no order as to costs.
Dated, Signed and Delivered in Open Court at Nairobi this 31stday of July, 2018
ONESMUS N. MAKAU
JUDGE