[2014] KEELRC 612 (KLR)
The court held that the claim was filed outside the statutory three-year limitation period prescribed by the Employment Act 2007, as the claimant left employment on 21st March 2009 and filed the claim on 6th May 2013, over a year late. The claimant provided no explanation for the delay. Furthermore, the court found...
Source-derived case information.
- Citation
- [2014] KEELRC 612 (KLR)
- Parties
- Claimant: Kimatu Igecha; Respondent: SBI International Holdings AG Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 624 of 2013
- Procedural Posture
- Employment Claim / Final Judgment
- Outcome
- claim dismissed
- Legal Topics
- Unfair Termination, Limitation Periods, Summary Dismissal, Employee Discipline
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimatu Igecha
Claimant
SBI International Holdings AG Kenya
Respondent
Procedural Posture
Employment Claim / Final Judgment
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period under the Employment Act 2007.
- 2 Whether the termination of the claimant's employment was unfair and unlawful.
- 3 Whether the respondent was entitled to dismiss the claimant based on the alleged employment offence despite the claimant's acquittal in criminal proceedings.
Ratio Decidendi
The court held that the claim was filed outside the statutory three-year limitation period prescribed by the Employment Act 2007, as the claimant left employment on 21st March 2009 and filed the claim on 6th May 2013, over a year late. The claimant provided no explanation for the delay. Furthermore, the court found that the respondent had reasonable grounds to terminate the claimant's employment based on the theft of the tipper lorry assigned to him, and that the respondent was entitled to take disciplinary action regardless of the outcome of the criminal proceedings. The criminal court's decision did not absolve the claimant of employment offences, and the respondent's internal processes...
Court Disposition
claim dismissed
Orders
- The claim is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 624 OF 2013
BETWEEN
KIMATU IGECHA ……………………………..………………………….. CLAIMANT
VERSUS
SBI INTERNATIONAL HOLDINGS AG KENYA………………..……. RESPONDENT
Rika J
CC. Mr. Kidemi
Mr. Makori holding brief for Mr. J.M. Onyancha Advocate for the Claimant
Prof. Albert Mumma & Company Advocates for the Respondent Absent
_____________________________________________________________
ISSUE IN DISPUTE: UNFAIR AND UNLAWFUL TERMINATION
AWARD
1. The Claimant filed his Statement of Claim, on 6th May 2013. The Respondent, a Road Construction Company, filed its Statement of Response on 28th June 2013. The hearing was scheduled by the Claimant’s Advocate for 23rd January 2014. The Respondent’s Advocates were notified and acknowledged receipt of the hearing date, as borne out in the affidavit of service sworn by Process-Server Amos Adwera on 21st January 2014. The Respondent and its Advocates did not attend the hearing.
2. The Claimant testified he was employed by the Respondent as Tipper Lorry Driver in the year 2007. He was issued a Hiring Card. He was working at the Respondent’s JKIA Nairobi- Mombasa Road, earning a total monthly net pay of Kshs. 25,890.
3. On 21st March 2009, the Respondent alleged the Claimant was involved in the theft of its Tipper Lorry which was assigned to him. The Claimant was arrested and placed in the custody of the Police for 5 days. He was absolved of the offence, and became a witness for the prosecution in Machakos Magistrate’s Court Criminal Case Number 964 of 2009. Other Persons were charged with the offence of stealing in that case. After his testimony he went back to work, and was informed by the Respondent he was no longer an employee of the Respondent. Police confirmed to the Respondent that the Claimant was merely a witness, but the Respondent would not reinstate the Claimant. He therefore filed this Claim seeking:-
a) Service pay for the period worked at Kshs. 34,520;
b) Unpaid leave for 2 ½ years at Kshs. 64,725;
c) One month salary in lieu of notice at Kshs. 25,890;
Total ……………… Kshs. 125,135
The Claimant also seeks general damages for false imprisonment; costs; interest; and any other remedies.
4. The Respondent responds in its Statement filed in Court that the Claim is time barred, having been filed outside the limitation of three years prescribed under the Employment Act 2007. Secondly, the Claimant was arrested and held in Police Custody on reasonable suspicion of having stolen a Tipper Lorry, and the Respondent was entitled to dismiss him under Section 44[4] [g] of the Employment Act 2007. The arrest was made independently by the Police. The Respondent was not privy to the deal between the Claimant and the Police whereof the Claimant was turned into a Prosecution witness. This did not preclude him from taking responsibility for the stolen Tipper Lorry, which was an employment offence at the workplace separate from the criminal offence being tried in Court. Termination was lawful and the Claimant is not owed any dues by the Respondent. The Respondent prays the Court to dismiss the Claim.
The Court Finds and Awards-:
5. The Claim was filed on 6th May 2013. The Claimant left employment on 21st March 2009. Three years prescribed under the law, within which to file an employment claim, lapsed on 20th March 2012. The Claimant was late by more than one year. He did not even make an attempt to explain delay. Secondly, there were reasonable grounds in terminating his contract of employment. The Respondent’s Tipper Lorry assigned to the Claimant was stolen. He was initially a suspect, who was turned into a prosecution witness. The criminal trial did not bar the Respondent from taking disciplinary action against the Claimant, based on the Respondent’s own internal disciplinary processes. It was not for the Police or the Criminal Court, to absolve the Claimant of the employment offence. The Court finds the Claim is improperly before it, and thin on merit. It is hereby dismissed with no order on the costs.
Dated and delivered at Nairobi this 28th day of February 2014
James Rika
Judge