[2014] KEELRC 1317 (KLR)
The court held that since the claimant's employment was terminated on 11th March 2008, prior to the commencement of the Employment Act, 2007 on 2nd June 2008, the applicable law was the repealed Employment Act Cap 226, which provided for a 6-year limitation period. Section 90 of the Employment Act, 2007, which...
Source-derived case information.
- Citation
- [2014] KEELRC 1317 (KLR)
- Parties
- Applicant: Paul Mzungu Sumba; Respondent: Housing Finance Company of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1000 of 2013
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to claimant
- Judges
- DO Ogal
- Legal Topics
- Limitation Periods, Unfair Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mzungu Sumba
Applicant
Housing Finance Company of Kenya
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 applicable limitation period is 3 years or 6 years for the claim arising from termination of employment prior to the commencement of the Employment Act, 2007.
Ratio Decidendi
The court held that since the claimant's employment was terminated on 11th March 2008, prior to the commencement of the Employment Act, 2007 on 2nd June 2008, the applicable law was the repealed Employment Act Cap 226, which provided for a 6-year limitation period. Section 90 of the Employment Act, 2007, which prescribes a 3-year limitation period, was not applicable to the claimant's cause of action. The respondent's reliance on section 90 was therefore misplaced, and the preliminary objection was without merit. The court found that the claim was not time-barred and dismissed the preliminary objection with costs to the claimant.
Court Disposition
preliminary objection dismissed with costs to claimant
Orders
- The respondent's preliminary objection is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NO. 1000 OF 2013
RULING
PAUL MZUNGU SUMBA
VERSUS
HOUSING FINANCE COMPANY OF KENYA
DELIVERED BY
HON. LADY JUSTICE MAUREEN ONYANGO
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO. 1000 OF 2013
PAUL MZUNGU SUMBA…… ……………………………..CLAIMANT
VERSUS
HOUSING FINANCE COMPANY OF KENYA …………RESPONDENT
RULING
The claim herein was filed by the Claimant against the Respondent on 2nd July, 2013. The Claimant alleges that he was forced to resign by the Respondent’s Director of Human Resources on 11th March, 2008. He alleges he had a flawless record and the compulsion to resign was not warranted. He seeks payment of 30 days salary for each of the 8 years he worked for the Respondent and 12 months salary as compensation for unfair termination.
The respondent filed a reply to the memorandum of claim on 23rd May 2014 after obtaining leave to file the same out of time. In the reply to the claim the Respondent denies the allegations in the claim by the Claimant and avers that the Claimant resigned voluntarily. The Respondent further denies owing any monies to the claimant and prays that the claim be dismissed with costs.
On 23rd May, 2014, that is the same day the Respondent filed its reply to the statement of claim, the Respondent also filed a Notice of Preliminary objection to the effect that the claim is time barred by virtue of section 90 of the employment Act.
The case came up for hearing of the Preliminary Objection on 11th June 2014 when the parties agreed to proceed by way of written submissions.
I have considered the written submissions and the authorities cited by parties.
The gist of the Respondent’s Preliminary Objection is that the cause of action arose on 11th March 2008 but the claim was filed on 2nd July 2013, thus offending Section 90 of the Employment Act which requires that claims be filed within 3 years. That having filed the claim 5 years and 5 months after the cause of action arose, the claim is statute barred. The Respondent prays that the claim be dismissed. The Respondent relied on the following cases:
James K. Nyaribo Vs. Permanent Secretary Ministry of Public Works & Another (2014) eKLR.
Laban Chema Libabu Vs. Bata Shoe Company (K) Limited Cause No. 46 of 2013,
Josephat Ndirangu V.s Henkel Chemicals (E.A) Limited (2013) eKLR;
Fred Mudave Gogo Vs. G4S Security Services (K) Limited (2014) eKLR.
The Claimant submitted that the claim had not lapsed when he filed his claim as the limitation period for contracts is 6 years. He further submitted that he was not able to file his claim in good time because he was destabilized by the abrupt termination of his employment and had to relocate his family upcountry. He submitted further that he was unable to file his claim until he secured another job.
The Claimant relied on the case of Esther Kahai Kihima Vs. Trident Insurance Company Limited (2013) eKLR.
I have considered the written submissions by both parties and the cases cited.
The Employment Act 2007 came into operation on 2nd June 2008. This means that on 11th March 2008 when the Claimant’s employment was terminated the applicable law was the Employment Act Cap 226 (now repeated). The limitation period under the repealed Act was 6 years. Section 90 of the Employment Act 2007 on which the Respondent’s Preliminary Objection is grounded is not applicable to this case. The cases cited by the Respondent do not support its Preliminary Objection with the exception of the case of James S. Nyaribo – vs- Permanent Secretary, Ministry of Public works & another (2014) eKLR which in my opinion was made in error. I am in any event not bound by the said decision.
I however agree with the case cited by the Claimant, that is Esther Kahai Kihima –vs- Trident Insurance company Limited (2013) eKLR whose facts were similar to the present case.
For the foregoing reasons, I find no merit in the Respondents Preliminary objection and dismiss the same with costs.
Orders accordingly.
Dated in open court this 24th day of September, 2014.
HON. LADY JUSTICE MAUREEN ONYANGO
JUDGE
In the presence of:
Wanyanga holding brief for Onduso for Claimant
Kanyuko holding brief for Mr. Kioko for Respondent