[2021] KEELRC 837 (KLR)
The court found that the claimant failed to provide sufficient evidence that the current suit was a continuation of the earlier suit filed within the limitation period. Specifically, the claimant did not annex pleadings or the court order from ELRC Cause No. 284 of 2015 directing the separation of claims. In the...
Source-derived case information.
- Citation
- [2021] KEELRC 837 (KLR)
- Parties
- Claimant: Kennedy Simiyu Murunga; Respondent: Laikipia University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 119 of 2016
- Procedural Posture
- Employment Claim / Ruling on Preliminary Objection
- Outcome
- claim struck out as time barred
- Judges
- HS Wasilwa
- 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
Kennedy Simiyu Murunga
Claimant
Laikipia University
Respondent
Procedural Posture
Employment Claim / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act.
- 2 Whether the claimant properly demonstrated that the current suit emanated from an earlier suit within limitation period.
- 3 Whether the claim should be struck out for being filed out of time.
Ratio Decidendi
The court found that the claimant failed to provide sufficient evidence that the current suit was a continuation of the earlier suit filed within the limitation period. Specifically, the claimant did not annex pleadings or the court order from ELRC Cause No. 284 of 2015 directing the separation of claims. In the absence of such evidence, the court held that the claim was filed outside the three-year limitation period prescribed by section 90 of the Employment Act. Consequently, the claim was found to be statute barred and was struck out.
Court Disposition
claim struck out as time barred
Orders
- The claim is struck out for being time barred under section 90 of the Employment Act.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAKURU
ELRC CAUSE NO. 119 OF 2016
KENNEDY SIMIYU MURUNGA.............................................................CLAIMANT
VERSUS
LAIKIPIA UNIVERSITY......................................................................RESPONDENT
RULING
1. The Claimant herein filed this claim on 1st April, 2016 alleging unfair termination of his employment that allegedly came to an end on expiry of contract on 28th September, 2012. He stated that prior to the expiry of the said contract he had worked for the respondent continuously from August, 2006 till 26th June, 2012 when his employment was converted to a short term contract of 3 months which came to an end after the 3 months with no option of renewal.
2. In response the Respondent filed its defence on 27th March 2017 and on 22nd March 2021 they raised a Preliminary objection based on the following grounds;-
1) That the claimant’s suit as filed in the memorandum of claim dated 1st April, 2016 is fatally defective for the same is statute barred for being filed outside the limitation of time contrary to the provisions of section 90 of the Employment Act.
2) That the claimant’s employment contract expired on 28th September, 2012 and this suit was filed on 1st April, 2016 which is past the three (3) years.
3) That the claimant did not seek for leave of this Honourable Court to file this suit out of time.
4) That the claimant’s suit is untenable in law, inept and ought to be struck out with costs.
3. The Claimant filed a replying Affidavit on the 15th July, 2021 deposed upon on even date opposing the preliminary objected and averred that the claim herein was first filed in October, 2015 under ELRC cause number 284 of 2015 David Mwangi Wachira and other –v- Egerton university (Currently Laikipia University). He stated that he was the 2nd claimant in that suit.
4. He averred that the Respondent entered appearance through the firm of Mwangi Mukira and Company Advocates and filed their defence on 9th December 2015. Subsequently the matter was mentioned severally in Court and Justice Radido Ordered the claim be separated and each claim be heard separately on its merit.
5. The claimant maintains that the claim herein is rightly before this court and urged this Court to struck out the Preliminary objection and hear the claim on its merit.
6. I have examined the averments and submissions of the parties herein. The respondents filed a preliminary objection herein alleging that this claim is time barred. The claimant on his hand responded averring that he filed this claim in time vide ELRC Cause No. 284 of 2015 but that Hon. J. Radido directed that the claim be split into two and be heard separately.
7. The claimant exhibited Form 2 – summons to enter appearance in Cause 284 of 2015 which shows that this claim was filed and issued on 23/10/2015. He has not however annexed pleadings in this cause and the order from J. Radido ordering that the matter be separated and each case be heard on its own.
8. The claimant should have demonstrated that this matter was filed following an order of the court emanating from Cause No. 284 of 2015.
9. In any case, if there was such an order the claimant should have proceeded to extract the same and most probably proceed with the claim as No. 284 of 2015.
10. There being no evidence of this orders, I find that indeed this claim is time barred as Under Section 90 of the Employment Act 2007 which states as follows;
90. Limitations
Notwithstanding the provisions ofsection 4(1) of the Limitation of Actions Act (Cap. 22), 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.
11. I hereby proceed to strike out this claim on account of being time barred.
12. The claimant is free to pursue his claim under Cause 284 of 2015.
13. Costs to the respondents.
RULING DELIVERED VIRTUALLY THIS 5TH DAY OF OCTOBER, 2021.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:-
Awuor for claimant – present
Mwangi Mukira & Co. Advocates for the Respondents –
Present
Court Assistant - Fred