[2012] KEELRC 216 (KLR)
The court found that the applicant's delay of 15 years in seeking to file a claim for terminal benefits was inordinate and unexplained. Section 90 of the Employment Act, 2007, requires that claims based on employment contracts be filed within three years. The applicant failed to provide a plausible explanation for...
Source-derived case information.
- Citation
- [2012] KEELRC 216 (KLR)
- Parties
- Applicant: William Tonangweya; Respondent: Sarova Hotels Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 712 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Limitation of Actions, Terminal Benefits, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Tonangweya
Applicant
Sarova Hotels Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a claim for terminal employment benefits out of time.
- 2 Whether there is a plausible explanation for the 15-year delay in filing the claim.
Ratio Decidendi
The court found that the applicant's delay of 15 years in seeking to file a claim for terminal benefits was inordinate and unexplained. Section 90 of the Employment Act, 2007, requires that claims based on employment contracts be filed within three years. The applicant failed to provide a plausible explanation for the delay, and the court declined to exercise its discretion to grant leave to file the claim out of time. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- Leave to file claim out of time is declined.
- No further orders.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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WILLIAM TONANGWEYA…………………...……………………..CLAIMANT
VERSUS
M/S SAROVA HOTELS LIMITED……….….…………….......RESPONDENT
RULING
The applicant has filed a Notice of Motion seeking leave to file claim out of time to recover employment terminal benefits. The Motion is supported by a detailed affidavit annexing various correspondences which I have considered in writing this ruling.
The Applicant was employed by the Respondent between 1st January, 1992 and 29th September, 1997 when he was summarily dismissed for various reasons contained in the letter of dismissal dated 29-9-1997.
The Applicant appealed but the same was summarily rejected. In the dismissal letter, the Respondent had admitted to pay terminal dues to the applicant which were not paid despite several demand letters some through advocates. One wonders why no legal action was filed even after threats to do so by his Advocates.
I have considered the application and the supporting documents and I have doubt that from September, 1997 to April 2012, when the Applicant filed this application amounts to 15 years, an ordinate delay. A claim based on employment contract is supposed to be filed within three (3) years as per Section 90 of the Employment Act, 2007.
There is no plausible explanation for the inordinate delay of about 15 years.
I decline to grant the leave sought in the motion for the above reasons. That shall be the order of the Court.
Orders accordingly.
DATEDand DELIVERED at Nairobi this 20th day of September, 2012.
Onesmus Makau
JUDGE