[2018] KEELRC 2425 (KLR)
The court found that the claimant's cause of action accrued on 2 December 2013, and under section 90 of the Employment Act, 2007, the claim should have been filed within three years, i.e., by 2 December 2016. The claim was filed on 6 December 2016, outside the statutory limitation period. The court held that...
Source-derived case information.
- Citation
- [2018] KEELRC 2425 (KLR)
- Parties
- Claimant: Samuel M. Orieto; Respondent: Dr. D.K. Ngotho t/a Nakuru Elite School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 488 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim struck out as statute barred.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Dismissal, Limitation Periods, Conciliation Process, Underpayment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel M. Orieto
Claimant
Dr. D.K. Ngotho t/a Nakuru Elite School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the cause of action is statute barred under section 90 of the Employment Act, 2007.
- 2 Whether there was unfair dismissal of the claimant.
- 3 Whether the claimant was underpaid during employment.
Ratio Decidendi
The court found that the claimant's cause of action accrued on 2 December 2013, and under section 90 of the Employment Act, 2007, the claim should have been filed within three years, i.e., by 2 December 2016. The claim was filed on 6 December 2016, outside the statutory limitation period. The court held that conciliation proceedings before the Labour Office did not suspend or extend the limitation period. Consequently, the entire claim was statute barred, and the court struck out the memorandum of claim without considering the substantive merits of the other issues raised.
Court Disposition
Claim struck out as statute barred.
Orders
- The Memorandum of Claim filed on 6 December 2016 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAKURU
CAUSE NO. 488 OF 2016
SAMUEL M. ORIETO................................CLAIMANT
v
DR. D.K. NGOTHO t/a
NAKURU ELITE SCHOOL...................RESPONDENT
JUDGMENT
1. Samuel M. Orieto (Claimant) instituted legal proceedings against Dr. D. K. Ngotho t/a Nakuru Elite School (Respondent) on 6 December 2016 alleging that he was dismissed unlawfully. He also alleged that he had been underpaid and did not take leave and was not paid leave travelling allowance.
2. In a Response filed on 8 March 2017, the Respondent denied all the claims presented by the Claimant and also raised a plea of limitation.
3. On 9 May 2017, the Claimant filed a Notice to Act in Person and the Cause was heard on 19 October 2017 when the Claimant testified and on 24 October 2017 when the Respondent testified.
4. Although the Claimant proposed some 10 questions as arising for determination, the same can be condensed into 5 being, whether the cause of action is statute barred, whether there was unfair dismissal, whether Claimant was underpaid, whether Claimant had pending leave and appropriate remedies.
5. It is not in dispute that the parties went through conciliation before the Labour Office and the Conciliator in a report dated 5 August 2014 recommended that the Respondent pay the Claimant Kshs 98,460/-.
Limitation
6. The Claimant pleaded and testified that he was dismissed on 2 December 2013. The Respondent admitted that the separation was indeed on that day, but asserted that the Claimant deserted work.
7. On the basis of the pleadings and testimony that the cause of action accrued on 2 December 2013 and in consideration of section 90 of the Employment Act, 2007, the Claimant should have instituted the action on or before 2 December 2016.
8. The instant proceedings were commenced on 6 December 2016, clearly outside the period prescribed by section 90 of the Employment Act, 2007.
9. Although the dispute was taken through conciliation by the Labour Office, in the view of the Court, a conciliation process does not stop time from running for limitation purposes.
10. On that ground, the Court finds that the cause(s) of action presented by the Claimant are statute barred.
11. With the conclusion, it is not necessary for the Court to examine the other questions posed.
12. The Court orders that the Memorandum of Claim filed in Court on 6 December 2016 be struck out with no order as to costs.
Delivered, dated and signed in Nairobi on this 23rd day of February 2018.
Radido Stephen
Judge
Appearances
For Claimant In person
For Respondent Ms. Alwala instructed by Githui & Co. Advocates
Court Assistant Nixon/Martin