[2018] KEELRC 2532 (KLR)
The court found that the claimant's cause of action accrued on 22.01.2010, the date of dismissal. Under section 90 of the Employment Act, the claim should have been filed within three years, by 22.01.2013. The suit was instead filed on 26.11.2014, almost two years out of time. The claimant did not oppose the...
Source-derived case information.
- Citation
- [2018] KEELRC 2532 (KLR)
- Parties
- Claimant: Salome Chemewno; Respondent: New Kenya Co-operative Creameries Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2122 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit dismissed as time barred
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Unfair Termination, Statutory Bar, Service Pay, Termination Notice, Annual Leave
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Chemewno
Claimant
New Kenya Co-operative Creameries Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under section 90 of the Employment Act.
- 2 Whether the claimant is entitled to the reliefs sought for unfair termination and related claims.
Ratio Decidendi
The court found that the claimant's cause of action accrued on 22.01.2010, the date of dismissal. Under section 90 of the Employment Act, the claim should have been filed within three years, by 22.01.2013. The suit was instead filed on 26.11.2014, almost two years out of time. The claimant did not oppose the preliminary objection on limitation. The court upheld the respondent's preliminary objection and dismissed the suit as time barred, awarding costs to the respondent.
Court Disposition
suit dismissed as time barred
Orders
- The suit is dismissed with costs as the preliminary objection is upheld.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO. 2122 OF 2014
SALOME CHEMEWNO.............................................................CLAIMANT
- VERSUS -
NEW KENYA CO-OPERATIVE CREAMERIES LTD......RESPONDENT
(Before Hon. Justice Byram Ongaya in Court on Friday, 6th April, 2018)
RULING
The claimant filed the memorandum of claim on 26. 11. 2014 through Kang’ahi S. & Company Advocates. The claimant prayed for judgment against the respondent for a sum of Kshs.306, 314. 80 on the headings of pay in lieu of termination notice, pay during suspension, annual leave due and not taken, service pay, and compensation for unfair termination.
The respondent filed a response on 20. 01. 2015 through Kipkenda & Company Advocates. The respondent attached to the response a notice of preliminary objection that the suit was time barred under section 90 of the Employment Act because it was filed outside the 3 years of limitation as prescribed under that section. It was submitted that the claimant had not opposed the preliminary objection.
It was further submitted that in paragraph 3 of the memorandum of claim the claimant pleaded that she worked from 01. 07. 2008 to 15. 10. 2009 and in paragraph 9 that she was suspended on 15. 10. 2009 and dismissed on 22. 01. 2010. The cause of action having accrued on 22. 10. 2010, the suit ought to have been filed before or about 22. 01. 2013. Thus the suit was belatedly filed on 26. 11. 2014 after a statutory delay of about a year and 10 months.
The court upholds the submissions and the preliminary objection.
In conclusion the suit is hereby dismissed with costs as the preliminary objection is upheld accordingly.
Signed, datedanddeliveredin court atNairobithis Friday, 6th day of April 2018
BYRAM ONGAYA
JUDGE