[2018] KEELRC 2464 (KLR)
The court held that the Claimant's cause of action for unfair termination arose on 10 April 2010, the date of termination. Under section 90 of the Employment Act, 2007, the Claimant was required to file suit within three years, i.e., by 10 April 2013. The court rejected the Claimant's argument that the injury was...
Source-derived case information.
- Citation
- [2018] KEELRC 2464 (KLR)
- Parties
- Claimant: Nicholas Shikuku Omukuba; Respondent: Co-operative Bank of Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2071 of 2017
- Procedural Posture
- Cause / Ruling on Preliminary Objection/application to Strike Out Claim
- Outcome
- Claim struck out as statute-barred; no order as to costs.
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Unlawful Termination, Continuing Injury, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Shikuku Omukuba
Claimant
Co-operative Bank of Kenya Ltd
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection/application to Strike Out Claim
Legal Issues
- 1 Whether the claim is statute-barred under section 90 of the Employment Act, 2007.
- 2 Whether the pendency of criminal proceedings affects the running of time for limitation purposes.
- 3 Whether the cause of action constitutes a continuing injury under the Employment Act.
Ratio Decidendi
The court held that the Claimant's cause of action for unfair termination arose on 10 April 2010, the date of termination. Under section 90 of the Employment Act, 2007, the Claimant was required to file suit within three years, i.e., by 10 April 2013. The court rejected the Claimant's argument that the injury was continuing and only ceased upon acquittal in criminal proceedings, finding that the limitation period was not suspended by the pendency of criminal proceedings. The court further held that even if the continuing injury argument were accepted, the claim would still be out of time as the 12-month period from the date of acquittal had also lapsed. As limitation is a jurisdictional...
Court Disposition
Claim struck out as statute-barred; no order as to costs.
Orders
- The Memorandum of Claim filed on 17 October 2017 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2071 OF 2017
NICHOLAS SHIKUKU OMUKUBA CLAIMANT
v
CO-OPERATIVE BANK OF KENYA LTD RESPONDENT
RULING
1. For determination is a motion dated 8 January 2018 by the Respondent seeking
1. This Honourable Court be pleased to strike out the Statement of Claim dated 12th October, 2017 as against the Respondent.
2. This Honourable Court be please to dismiss the said Claim as against the Respondent.
3. The costs of this application and of the Cause be borne by the Claimant.
2. The Claimant filed grounds of opposition to the application on 18 January 2018, and the Court took submissions on 29 January 2018.
3. The facts are not in dispute.
4. The Claimant’s employment contract was terminated on 10 April 2010.
5. On or around 12 April 2010, the Claimant was charged with various counts of stealing by servant contrary to section 281 of the Penal Code/stealing contrary to section 275 of the Penal Code.
6. After a trial spread over 6 years, the trial Court, in a judgment delivered on 14 June 2016 acquitted the Claimant under section 215 of the Criminal Procedure Code.
7. On 17 October 2017, the Claimant instituted the instant proceedings against the Respondent and he stated the Issues in Dispute as the determination of the factual issue as to whether the Claimant’s employment was unlawfully and unfairly terminated.
8. The Claimant suffered a legal injury/wrongful act on 10 April 2010.
9. In terms of section 90 of the Employment Act, 2007 he should have commenced legal proceedings on or before 10 April 2013. He did not.
10. On that score, the cause of action presented before Court is caught up by the law of limitation.
11. If the cause of action amounted to a continuing injury as submitted by the Claimant, and which continuing injury ceased with the acquittal (and the Court does not buy that argument) and therefore falling under the second limb of the limitation provision of section 90 of the Employment Act, 2007, the 12 months lapsed on or around 14 June 2017.
12. Even in such a case, the cause of action would have been caught up by the law of limitation.
13. Limitation is not merely a procedural technicality but a jurisdictional question.
14. Just as time for purposes of limitation does not stop running because parties are engaged in out of court negotiations (see Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Ar. (2016) eKLR), the pendency of criminal proceedings on similar facts would not in my view stop time from running for purposes of limitation.
15. The Court therefore concludes that the causes of action presented by the Claimant are caught up by the law of limitation and orders that the Memorandum of Claim filed in Court on 17 October 2017 be struck out with no order as to costs.
Delivered, dated and signed in Nairobi on this 16th day of February 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Moigi instructed by Ochanda Onguru & Co. Advocates
For Respondent Mr. Kiche instructed by Triple OKLaw LLP, Advocates
Court Assistant Lindsey