[2015] KEELRC 432 (KLR)
The court found that the question of whether the employment relationship had lapsed or was ongoing is a factual issue that must be determined at a full hearing. Since there are disputed facts regarding the lapse of employment and the nature of the claims, the preliminary objection on limitation cannot be determined...
Source-derived case information.
- Citation
- [2015] KEELRC 432 (KLR)
- Parties
- Claimant: Samuel Munyua Mwangi; Respondent: KHE Nanyuki Farm Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 111 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Workman Injury Compensation, Withheld Salaries, Termination Notice, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Munyua Mwangi
Claimant
KHE Nanyuki Farm Limited
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, 2007.
- 2 Whether the employment relationship had lapsed or was ongoing at the time of filing.
- 3 Whether the claim for withheld salaries and injuries can proceed to full hearing.
Ratio Decidendi
The court found that the question of whether the employment relationship had lapsed or was ongoing is a factual issue that must be determined at a full hearing. Since there are disputed facts regarding the lapse of employment and the nature of the claims, the preliminary objection on limitation cannot be determined at this stage. The court held that the preliminary objection was not valid and dismissed it, allowing the matter to proceed to full hearing for resolution of the factual disputes.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs.
- Parties are invited to take directions on further steps in the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 111 OF 2015
SAMUEL MUNYUA MWANGI..................................... CLAIMANT
VERSUS
KHE NANYUKI FARM LIMITED............................. RESPONDENT
(Before Hon. Justice Byram Ongaya on Thursday 15th October, 2015)
RULING
The claimant filed the memorandum of claim on 02/07/2015 through Kipkenei & Company Advocates. The claimant has pleaded as follows:
He was employed by the respondent as a driver when on 08. 01. 2011 the vehicle he was assigned developed mechanical problems and he was seriously injured
The claimant has not been compensated for the injuries suffered as provided for in the Workman Injury Compensation Act.
That from June 2011 the respondent stopped the salary of the claimant without notice being Kshs.10, 392. 00 per month.
The claimant prayed for withheld salary for 40 months from July 2011 to April 2015 Kshs.453, 508. 00; 3 months’ salary in lieu of termination notice Kshs.30,921. 00; general damages; costs of the suit; and any other relief that this honourable court may deem fit to grant.
The response to the memorandum of claim was filed on 17. 09. 2015 through Munene Wambugu & Kiplagat Advocates. The respondent prayed that the claim be dismissed with costs. The respondent also filed the notice of preliminary objection on 17. 09. 2015 that the suit was time barred under section 90 of the Employment Act, 2007.
The respondent has submitted that the suit was filed outside the 3 years as prescribed in section 90 of the Act because the claimant has pleaded that the accident was on 08. 01. 2011 and withheld salary is claimed from July 2011.
For claimant it was submitted that the claim for withheld salaries is premised on the fact that the employment has not lapsed and the claim for injuries is for a prayer of general damages.
The court has considered the submissions and makes a finding as follows:
Whether the employment has lapsed or not is a question of fact to be resolved at full hearing by way of evidence. Thus the court finds that in view of the issues of fact that are to be resolved by evidence, it cannot be said that the preliminary objection was valid. The matters of facts being disputed render a full hearing necessary.
The claim of injuries arising from the accident is well a claim in negligence as it might secondarily be related to the contract of employment. That is an issue to be resolved at full hearing and final submission as to whether the claim is time barred.
In conclusion the preliminary objection is dismissed with costs and parties are invited to take directions on further steps in the suit.
Signed, datedanddeliveredin court atNyerithisThursday, 15th October, 2015.
BYRAM ONGAYA
JUDGE