[2014] KEELRC 1012 (KLR)
The court found that the applicant was retrenched and retired from government service, and that the government acknowledged his entitlement to salary and safety net benefits. There was no evidence that the government ever communicated a refusal to pay these dues. The court held that the failure to pay the terminal...
Source-derived case information.
- Citation
- [2014] KEELRC 1012 (KLR)
- Parties
- Applicant: Philip Korir; Respondent: Ministry of Labour and Social Security
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 9 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- B Ongaya
- Legal Topics
- Limitation of Actions, Terminal Benefits, Retrenchment, Government Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Korir
Applicant
Ministry of Labour and Social Security
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit out of time against the government for unpaid terminal dues.
- 2 Whether section 26(c) of the Limitation of Actions Act applies to the applicant's claim due to alleged mistake by the government.
Ratio Decidendi
The court found that the applicant was retrenched and retired from government service, and that the government acknowledged his entitlement to salary and safety net benefits. There was no evidence that the government ever communicated a refusal to pay these dues. The court held that the failure to pay the terminal dues was likely due to a mistake on the part of the government. Under section 26(c) of the Limitation of Actions Act, where a cause of action is based on mistake, the limitation period does not begin to run until the mistake is discovered. Therefore, the applicant was entitled to file suit out of time to claim his final dues.
Court Disposition
application allowed
Orders
- The claimant is entitled to file the suit to claim his final dues following his retrenchment and retirement from government services.
- The claimant will file the suit in 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
MISCELLANEOUS CAUSE NO. 9 OF 2014
PHILIP KORIR..........................................CLAIMANT
MINISTRY OF LABOUR AND SOCIAL
SECURITY.........................................RESPONDENT
IN THE MATTER OF AN APPLICATION BY PHILIP KORIR FOR LEAVE TO FILE A SUIT OUT OF TIME
(Before Hon. Justice Byram Ongaya on Friday 23rd May, 2014)
RULING
The application was filed by the applicant Philip Korir in person on 08. 05. 2014. He prayed that he be granted leave to file suit out of time against the Director of Vocational Training, Ministry of Labour and the Principal Secretary. The court considered that the case would be against the government and directed the applicant to serve the Attorney General. Despite the service, the Attorney General did not enter appearance or file any document. The applicant opted to rely on the documents filed in court and invited the court to consider his application favourably. The application was based on the applicant’s supporting affidavit and exhibits filed together with the application.
The applicant’s case is that he was employed in 1976 as a Senior Manager in the Youth Development Programme and District Youth Training Officer in charge of Government Youth Development Programmes. On 30. 9.2000 and at a time when the claimant had one and half months to the mandatory retirement age, the claimant says he was retrenched from the government services. Immediately after the retrenchment, the claimant fell sick in 2001. The court has perused exhibit PK 1 and finds that the exhibits show that the claimant has been unwell.
The applicant’s main intended claim is that after retrenchment and retirement, the government did not pay him the due terminal dues of Kshs.1,375,825. 25, salary for the month of October, 2000 and 14 days worked in November, 2000 being Kshs.9,275. 65, and making a total of Kshs.1,385,100. 80.
By the letter dated 26. 01. 2001, the Director Industrial and Vocational Training conveyed to the applicant that the salary issue was being considered along with the safety net benefits.
There is nothing on record to show that the government subsequently conveyed to the applicant that it will not pay the salary and the safety net benefits; the terminal dues.
The court has considered the circumstances of this case. If indeed the claimant was retrenched and retired as per the certificate of service and as per the letter acknowledging that he was entitled to salary and safety net benefits, the court finds that failure to pay his terminal dues can only be due to some mistake on the part of the government. Thus, the court finds that in event of such mistake, the time with respect to the cause of action cannot have started running as envisaged under section 26 (c) of the Limitation of Actions Act, Cap.22.
Accordingly, the court finds that the claimant is entitled to file the suit.
In conclusion, the court finds that the claimant’s application is determined with orders:
The claimant is entitled to file the suit to claim his final dues following his retrenchment and retirement from government services.
The claimant will file the suit in 30 days from today.
The costs of the application shall abide the outcome of the suit to be filed.
The claimant will serve this ruling, within 7 days from today, upon the Attorney General, the Public Service Commission and the Cabinet Secretary responsible for Labour for their considered amicable resolution of the claimant’s intended claim and as notice to sue.
Signed, datedanddeliveredin court atNakuruthisFriday 23rd May, 2014.
BYRAM ONGAYA
JUDGE