[2021] KEELRC 1345 (KLR)
The court found that the respondents, having failed to file and serve submissions in support of their preliminary objection, did not substantiate their argument that the claim was time-barred as a continuing injury under section 90 of the Employment Act, 2007. The court declined to speculate or second-guess the...
Source-derived case information.
- Citation
- [2021] KEELRC 1345 (KLR)
- Parties
- Claimant: Kerosi Ondieki; Respondent: County Assembly Service Board, Kisii; Respondent: Clerk, County Assembly of Kisii; Respondent: County Government of Kisii
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 87 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to claimant
- Legal Topics
- Limitation of Actions, Continuing Injury, Employment Contracts, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kerosi Ondieki
Claimant
County Assembly Service Board, Kisii
Respondent
Clerk, County Assembly of Kisii
Respondent
County Government of Kisii
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to entertain the claim based on alleged continuing injury.
- 3 Whether the claimant has capacity to sue after the lapse of the limitation period.
Ratio Decidendi
The court found that the respondents, having failed to file and serve submissions in support of their preliminary objection, did not substantiate their argument that the claim was time-barred as a continuing injury under section 90 of the Employment Act, 2007. The court declined to speculate or second-guess the respondents' position in the absence of submissions and dismissed the preliminary objection, awarding costs to the claimant.
Court Disposition
preliminary objection dismissed with costs to claimant
Orders
- The Notice of Preliminary Objection is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 87 OF 2019
KEROSI ONDIEKI .............................................................................CLAIMANT
v
COUNTY ASSEMBLY SERVICE BOARD,KISII ................1st RESPONDENT
CLERK, COUNTY ASSEMBLY OF KISII ...........................2nd RESPONDENT
COUNTY GOVERNMENT OF KISII....................................3rd RESPONDENT
RULING
1. Kerosi Ondieki (the Claimant) served as a Speaker, County Assembly of Kisii (the County Assembly) from 2013 to 2017.
2. On 4 October 2019, the Claimant sued the County Assembly Service Board, the Clerk of the County Assembly and the County Government of Kisii alleging breach of contract in respect to payment of house allowance, travel reimbursements, payment of non-practice allowance (prosecutorial allowance), continuous professional development and gratuity.
3. On 28 November 2019, the County Assembly Service Board and the Clerk filed a Notice of Preliminary Objection contending that:
(a) In so far as the suit relates to causes of action that have been continuing injuries or damages, this claim is time barred under the provisions of section 90 of the Employment Act of 2007. The Court therefore lacks jurisdiction to entertain this claim and the same ought to struck out with costs to the 1st and 2nd Respondents.
(b) The Claimant’s rights to sue having lapsed, the Claimant lacks capacity to agitate any cause of action against the Respondents. The Claim is therefore an abuse of the court process.
4. The Court directed the parties on 11 March 2021 to file and exchange submissions on the Preliminary Objection within stipulated timelines (the County Assembly Service Board and the Clerk were to file and serve their submissions on or before 11 April 2021 and the Claimant and the 3rd Respondent to file and serve submissions before 11 May 2021).
5. The submissions were not on record by this morning.
6. By failing to file and serve submissions, the Respondents have failed to develop the proposition that the cause of action advanced by the Claimant constitute continuing injury within the context of section 90 of the Employment Act, 2007.
7. The Court will therefore not second guess the Respondents preliminary objection or speculate on the same.
8. Before making final orders, the Court notes that there is a question on the Respondents legal representation which they should resolve.
9. The Notice of Preliminary Objection is dismissed with costs to the Claimant.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 1ST DAY OF JULY 2021.
RADIDO STEPHEN,
MCIARB
Judge
Appearances
For Claimant Nyagaka S.M. & Co. Advocates
For Respondents Kennedy Chweya Onsembe, Office of the County Attorney, Kisii/Muchemi & Co. Advocates.
Court Assistant Chrispo Aura