[2024] KEELRC 2610 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers v Utithi Secondary School (Cause E288 of 2023) [2024] KEELRC 2610 (KLR) (25 October 2024) (Ruling)

Neutral citation: [2024] KEELRC 2610 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E288 of 2023

SC Rutto, J

October 25, 2024

Between

Kenya Union of Domestic, Hotels, Educational Institutions And Hospitals Workers

Claimant

and

Utithi Secondary School

Respondent

Ruling

1. This Ruling is with respect to the Respondent’s Notice of Preliminary Objection dated 28th March 2024 in which the following grounds were raised:1. The Honourable Court lacks the jurisdiction to hear and determine the present Petition in light of the legal provisions stated hereunder:2. The suit is time-barred and offends mandatory provisions of section 90 of the Employment Act, 2007. 3.The cause of action challenged is based on a contract of employment between the Claimant and the Respondent.4. The Claimant resigned and terminated his services on 3rd March 2020 and the suit was filed on 11th April 2023 as per the time stamp in the CTS system.5. The time that has lapsed between resignation and filing of this suit is 3 years 1 month which offends section 90 of the Employment Act, 2007. 6.The suit is an abuse of court process.7. The suit as drawn is therefore defective, bad in law and should be struck out.

2. On 29th April 2024, the Court directed that the Preliminary Objection be canvassed by way of written submissions. Only the Respondent filed written submissions as the Claimant’s submissions were missing from the Court’s physical record and the online portal.

Analysis and Determination 3. To my mind, the singular issue for determination is whether the suit is time-barred.

4. The record bears that vide a letter dated 4th March 2020, the Claimant notified the Respondent’s Board of Management, of his desire to terminate his contract of employment. A look at the Memorandum of Claim reveals that the Claimant’s Claim against the Respondent is for payment of his terminal dues being service gratuity for 11 years, underpaid salary for 11 years and unpaid leave for 11 years.

5. According to the Claimant, he persuaded the Respondent’s management through several correspondences to pay his terminal dues but they adamantly ignored his plea.

6. The Respondent’s position is that the Claim is statute barred hence this Court is not clothed with jurisdiction to entertain the same.

7. Pursuant to Section 90 of the Employment Act, a suit founded on a contract of service as the one herein, cannot be sustained in Court after the lapse of three years from the date the cause of action occurred. That being the case, the logical question to ask, is when did the cause of action arise in this case?

8. A cause of action refers to a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. (see the case Attorney General & another v Andrew Maina Githinji & another [2016] eKLR).

9. In this case, the cause of action arose when the Claimant tendered his resignation on 4th March 2020 hence that is the time he became entitled to payment of his terminal dues.

10. Applying the provisions of Section 90 of the Employment Act to the case herein, the time for filing the instant suit started running from 4th March 2020 and lapsed on 4th March 2023 or thereabout. Thereafter, no action based on the conyract of employment could be sustained.

11. In this case, the Claimant filed the Claim herein on 11th April 2023 hence by simple arithmetic, this was beyond the three year limitation period stipulated under Section 90 aforesaid. Therefore, it goes without saying that as of 11th April 2023, the Claim herein was statute-barred.

12. To this end, and in following with the holding in the case of Thuranira Karauri v Agnes Ncheche [1997] eKLR, that the issue of limitation goes to the court’s jurisdiction, it is this Court’s finding that it lacks jurisdiction to entertain the instant suit.

13. In the premises, the Respondent’s Preliminary Objection dated 28th March 2024, is sustained, with the consequence that the Claim filed on 11th April 2023, is struck out for being time-barred.

14. Each party shall bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF OCTOBER 2024. ………………………………STELLA RUTTOJUDGEIn the presence of:No appearance for the ClaimantMs. Aluoch for the RespondentMillicent Kibet Court AssistantORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE