[2021] KEELRC 2317 (KLR)
The court found that the respondent failed to provide any material or evidence to support the preliminary objection on limitation. The court held that failure to pay gazetted minimum wage is a continuing injury under section 90 of the Employment Act, and the limitation period only begins to run from the cessation of...
Source-derived case information.
- Citation
- [2021] KEELRC 2317 (KLR)
- Parties
- Applicant: Kenya National Private Security Workers Union; Respondent: Group Nine Security
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 288 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Full Trial
- Outcome
- preliminary objection dismissed; suit to proceed to full trial
- Judges
- NJ Abuodha
- Legal Topics
- Statutory Wages, Limitation Periods, Continuing Injury, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Private Security Workers Union
Applicant
Group Nine Security
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Full Trial
Legal Issues
- 1 Whether the suit is statute barred under section 90 of the Employment Act due to limitation of actions.
- 2 Whether failure to pay gazetted minimum wage constitutes a continuing injury for limitation purposes.
Ratio Decidendi
The court found that the respondent failed to provide any material or evidence to support the preliminary objection on limitation. The court held that failure to pay gazetted minimum wage is a continuing injury under section 90 of the Employment Act, and the limitation period only begins to run from the cessation of such injury. Since the respondent did not demonstrate that they had paid or commenced payment of the minimum wage, there was no basis to uphold the objection. The court therefore dismissed the preliminary objection and directed that the matter proceed to full trial on its merits.
Court Disposition
preliminary objection dismissed; suit to proceed to full trial
Orders
- The preliminary objection is dismissed.
- The matter shall proceed to full trial on merits.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
ELRC NO 288 OF 2017
KENYA NATIONAL PRIVATE SECURITY WORKERS UNION................APPLICANT
VERSUS
GROUP NINE SECURITY.............................................................................RESPONDENT
R U L I N G
1. On 29th January, 2020 when this suit was slated for hearing the counsel for the respondent raised as preliminary an objection that the suit herein is statute barred. The court hence became of the view that since the issue of limitation goes to the jurisdiction of the Court it had to be considered first.
2. I therefore invited Mr. Omusundi for the respondent to submit on the issue and serve the Claimant for response. Counsel for the respondent however, never filed any submissions as directed. The court however considered the objection serious and called upon the Claimant to submit on the same even in the absence of submissions by the respondent.
3. The dispute herein concerns allegations of failure on the part of the respondent to pay statutory wages. According to the Claimant, the Minister through Uasin Gishu Labour Officer Mr. Boaz Musandu attempted to conciliate the parties but this failed due to lack of cooperation on the part of the respondent. On 8th September, 2016 the Conciliator issued a certificate of an unresolved dispute. This claim was subsequently filed on 11th October, 2016.
4. Failure to pay gazetted minimum wage is a continuing injury within the meaning of section 90 of the Employment Act. Limitation period begins to run from the point of cessation of such injury for twelve months.
5. The respondent herein has not alleged or shown that they paid or at some point began to pay gazetted minimum wage. In any event the respondent apart from merely raising the objection on limitation never prosecuted the same.
6. To this extent the Court has no material or proved facts that support the allegations of limitation.
7. The objections is therefore hereby dismissed and the matter shall therefore proceed to full trial on merits.
8. It is so ordered.
Dated at Eldoret this 12th day of January, 2021
Abuodha Jorum Nelson
Judge
Delivered this 12thday of January, 2021
Abuodha JorumNelson
Judge
In the presence of:-
……………………………………………………..………for the Claimant and
…………………………………………………………for the Respondent.
Abuodha Jorum Nelson
Judge