[2019] KEELRC 1808 (KLR)
The court found that the determination of when the cause of action arose required resolution of disputed facts, specifically whether the claimant was served with the termination letter in 2013 or only became aware of his dismissal in 2017. The court held that, based on the pleadings, the suit was filed within three...
Source-derived case information.
- Citation
- [2019] KEELRC 1808 (KLR)
- Parties
- Claimant: Methusellah Oyaro Sereti; Respondent: Kenya Seed Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 29 of 2018
- Procedural Posture
- Preliminary Objection / Ruling on Application to Strike Out Suit as Time Barred
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Limitation of Actions, Termination of Employment, Preliminary Objection, Service of Termination Letter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Methusellah Oyaro Sereti
Claimant
Kenya Seed Company Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Application to Strike Out Suit as Time Barred
Legal Issues
- 1 Whether the suit is time-barred under Section 90 of the Employment Act 2007.
- 2 Whether the cause of action arose on 28th January 2013 or 3rd February 2017.
- 3 Whether the application raises a pure point of law suitable for preliminary objection.
Ratio Decidendi
The court found that the determination of when the cause of action arose required resolution of disputed facts, specifically whether the claimant was served with the termination letter in 2013 or only became aware of his dismissal in 2017. The court held that, based on the pleadings, the suit was filed within three years from the date the claimant discovered the dismissal (3rd February 2017). Therefore, the application to strike out the suit as time-barred lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 3rd May 2018 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
INDUSTRIAL CAUSE NO. 29 OF 2018
(Before Hon. Justice Mathews N. Nduma)
METHUSELLAH OYARO SERETI...........CLAIMANT/RESPONDENT
VERSUS
KENYA SEED COMPANY LIMITED......RESPONDENT/APPLICANT
RULING
1. Application dated 3rd May 2018 seeks the court to strike out the suit in that it violates the provisions of Section 90 of the Employment Act 2007 since it was filed upon expiry of three (3) years from date the cause of action arose on 28th January 2013 and is therefore time barred.
2. This is a point of law that ought to be raised as a preliminary objection but not by filing a notice of motion application.
3. The application was nonetheless opposed vide a replying affidavit filed on 17th September 2018.
4. The claimant/respondent states that he was not served with purported letter of termination dated 28th January 2013. The claimant believed he was under suspension until the criminal case against him was concluded on 3rd February 2017.
5. That it was then that he went back to work requesting to be reinstated upon acquittal by the magistrate court.
6. That the cause of action according to the claimant/respondent started running on 3rd February 2017 when the purported letter of dismissal was shown to him.
7. That the suit was filed on 1st February 2018 about one year from the date of the discovery.
8. That the point raised by the applicant is not a pure point of law and requires determination of dispute of fact to be determined.
9. However, it is the court’s considered finding from the facts disclosed on the face of the pleadings, that this suit was filed within three (3) years from the date the cause of action arose being the 3rd February 2017.
10. The application lacks merit and is dismissed with costs in the cause.
Ruling Dated, Signed and delivered this 21st day of March, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Nyamwea for Claimant/Respondent
Kinei for Respondent/Applicant
Chrispo – Court Clerk