[2017] KEELRC 615 (KLR)
The court found that the Claimant's cause of action accrued on 7 December 2012, and the Memorandum of Claim was filed on 16 March 2017, which is outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The court held that the claim was therefore time-barred and must be struck...
Source-derived case information.
- Citation
- [2017] KEELRC 615 (KLR)
- Parties
- Claimant: Moses Macharia Muhoro; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 123 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Memorandum of Claim struck out as time-barred.
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Unlawful Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Macharia Muhoro
Claimant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the Memorandum of Claim should be struck out for being filed outside the statutory limitation period.
Ratio Decidendi
The court found that the Claimant's cause of action accrued on 7 December 2012, and the Memorandum of Claim was filed on 16 March 2017, which is outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The court held that the claim was therefore time-barred and must be struck out. The Claimant's failure to file any grounds of opposition or replying affidavit further supported the Respondent's preliminary objection. As a result, the court struck out the Memorandum of Claim with no order as to costs, since the Respondent had not filed a substantive response.
Court Disposition
Memorandum of Claim struck out as time-barred.
Orders
- The Memorandum of Claim is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 123 OF 2017
MOSES MACHARIA MUHORO...............................CLAIMANT
v
TEACHERS SERVICE COMMISSION..............RESPONDENT
RULING
1. In a Memorandum of Claim lodged with the Court on 16 March 2017, Moses Macharia (Claimant) asserted that the Teachers Service Commission (Respondent) unlawfully terminated his employment contract on 7 December 2012.
2. Upon service, the Respondent filed a Notice of Preliminary Objection that
a) The Claimant’s Claim herein is statutorily time barred and grossly offends the mandatory provisions of Section 90 of the Employment Act No. 11 of 2007.
3. Despite the notice being served upon the Claimant, he did not file any grounds of opposition or replying affidavit.
4. When the objection came up on 10 October 2017, the Claimant sought to delay its prosecution on the ground that a hearing notice thereto had only been served and the time between the service and hearing was too short.
5. Having failed to file grounds of opposition and/or replying affidavit, it is apparent that the Claimant was merely attempting to postpone the inevitable.
6. It cannot be disputed that the Claimant’s cause of action accrued on 7 December 2012 as pleaded in the Memorandum of Claim which was filed in Court on 16 March 2017.
7. The Cause having been filed outside the 3 year period prescribed by section 90 of the Employment Act, 2007 is caught up by the law of limitation.
8. The Court therefore orders the Memorandum of Claim to be struck out with no order as to costs as the Respondent had not yet filed a substantive Response.
Delivered, dated and signed in Nakuru on this 19th day of October 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Kipruto instructed by Mutuku Wambua & Associates, Advocates
For Respondent Ms. Ngere, Legal Officer, Teachers Service Commission
Court Assistants Nixon/Martin