[2012] KEELRC 104 (KLR)
The court determined that the cause of action accrued on 6th June, 2003, when the Minister's appointed investigator communicated his report. According to Section 90 of the Employment Act, 2007, the claimant was required to file the claim within three years from that date. Since the claim was filed on 12th April,...
Source-derived case information.
- Citation
- [2012] KEELRC 104 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers; Respondent: Njabini Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 846 of 2009
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed as time barred
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Unlawful Termination, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers
Applicant
Njabini Secondary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period under Section 90 of the Employment Act, 2007.
- 2 Whether the termination of the grievant's employment was unlawful.
Ratio Decidendi
The court determined that the cause of action accrued on 6th June, 2003, when the Minister's appointed investigator communicated his report. According to Section 90 of the Employment Act, 2007, the claimant was required to file the claim within three years from that date. Since the claim was filed on 12th April, 2010, well after the expiry of the statutory limitation period, the court found the claim to be time barred and dismissed it with costs.
Court Disposition
claim dismissed as time barred
Orders
- The claim is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL
INSTITUTIONS, HOSPITALS AND ALLIED WORKERS ................................. CLAIMANT
VERSUS
NJABINI SECONDARY SCHOOL ….……….……………..……………….RESPONDENT
JUDGMENT
The claimant brought the claim on behalf of its member one Isaac M. Mwangi, the grievant. The Respondent is Njabini Secondary School represented by the Honourable Attorney General.
The grievant was employed in the service of the Respondent in 1970 as a Clerical Officer. On 22nd May, 1993, the grievant was interdicted on account of misusing the respondent’s property, namely the school’s welding machine to repair his personal vehicle. The interdiction subsisted up to 2nd July 1993 when the respondent’s Board of Governors terminated the claimant’s employment with effect from the 2nd July, 1993.
The dispute was reported to the Minister for Labour and Human Resources Development and an investigator appointed. The investigator’s report was dated 6th June, 2003 and is annex 6 to the memorandum of claim.
The claimant filed the memorandum of claim on 12th April 2010. Counsel for the Respondent has submitted that the case is time barred in view of the provisions of Section 90 of the Employment Act, 2007. The Section provides that no civil action or proceedings based or arising out of the Act or 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.
In this case the court finds that the cause of action accrued on 6th June, 2003 when the Minister’s appointed investigator communicated his report. Three years prescribed in the Act lapsed on or about 6th June, 2006. The cause having been filed on 12th April, 2010, the court finds that it is time barred and it is dismissed with costs.
Signed, dated and delivered this 9th day of November, 2012.
BYRAM ONGAYA
JUDGE