[2017] KEELRC 739 (KLR)
The court found that the respondent had not provided sufficient factual basis or documentary evidence to support the assertion that the claim was statute barred, having relied only on the claimant's original pleadings, which the claimant sought to amend. The court held that limitation is a factual issue requiring...
Source-derived case information.
- Citation
- [2017] KEELRC 739 (KLR)
- Parties
- Claimant: Seth Ndeda; Respondent: Lavington Security Guards Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1132 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection and Application to Amend Claim
- Outcome
- Preliminary objection disallowed; claimant granted leave to amend claim; respondent granted leave to respond and liberty to renew objection.
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Amendment of Pleadings, Termination of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seth Ndeda
Claimant
Lavington Security Guards Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection and Application to Amend Claim
Legal Issues
- 1 Whether the suit is statute barred under section 90 of the Employment Act.
- 2 Whether the claimant should be allowed to amend the memorandum of claim to plead the correct date of accrual of the cause of action.
Ratio Decidendi
The court found that the respondent had not provided sufficient factual basis or documentary evidence to support the assertion that the claim was statute barred, having relied only on the claimant's original pleadings, which the claimant sought to amend. The court held that limitation is a factual issue requiring evidence and that errors in pleadings can be corrected by amendment. Accordingly, the court disallowed the preliminary objection at this stage and granted the claimant leave to amend the memorandum of claim, with liberty to the respondent to renew the objection after filing a response with supporting documents.
Court Disposition
Preliminary objection disallowed; claimant granted leave to amend claim; respondent granted leave to respond and liberty to renew objection.
Orders
- The preliminary objection is disallowed at this stage.
- The claimant's application for amendment dated 21st September, 2016 is allowed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
AT NAIROBI
CAUSE NO. 1132 OF 2014
SETH NDEDA…….…………………..…………..........CLAIMANT
VERSUS
LAVINGTON SECURITY GUARDS LIMITED…....RESPONDENT
RULING
1. The respondent herein raised a preliminary objection to the effect that the suit herein is statute barred by virtue of section 90 of the Employment Act in that the cause of action as pleaded accrued in August 2010 when the claimant was verbally informed that his services had been terminated yet the suit herein, was filed on 9th July, 2014 which was more than 3 years stipulated by section 90 of the Employment Act within which claims based on the Act or Contract of employment should be brought.
2. During the pendency of the preliminary objection, the claimant brought an application seeking to amend the memorandum of claim to plead the correct date when the cause of action accrued. In the application for amendment, the claimant stated that the cause of action accrued in December 2012 when the charges against him were dismissed and his employer dismissed him from employment. According to the claimant, upon arrest in June 2010, he was placed on suspension awaiting the outcome of the criminal case.
3. The respondent so far has not filed a response to the claim herein to show the factual basis upon which it relied to aver that the claim it statute barred. For instance, the respondent has not exhibited any letter or memorandum showing that the claimant was dismissed in August, 2010. It merely relied on the averments by the claimant which averments the claimant seeks to recant by the intended amendment. To err is human, so the claimant may have made a mistake in pleading the events herein. This is capable of curring through an amendment.
4. Plea of limitation although goes to jurisdiction of the court is more of an arithmetic question than a point of law. It is determined based on facts. This has not been brought out clearly by the respondent. The court will therefore disallow the preliminary objection at the moment and allow the claimant’s application for amendment dated 21st September, 2016 with leave to the respondent to file and serve a response to the claim herein within 21 days from the date hereof.
5. The respondent shall however have the liberty to renew the objection on limitation period once it has filed a memorandum of response together with supporting documents.
6. It is so ordered.
Dated at Nairobi this 17th day of March 2017
Abuodha J. N.
Judge
Delivered this 17th day of March 2017
In the presence of:-
………………………………......…for the Claimant and
…………………………………..…for the Respondent.
Abuodha J. N.
Judge