Nyabuto Arambe Abusa v Kenya Power & Lighting Company Limited [2017] KECA 220 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the three-year clock to sue over unfair termination starts on your termination date, not when a criminal case ends.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection raised before the learned judge was properly taken
- 2.When time began to run for the appellant's claim - whether on the date of termination or on his acquittal in the criminal case
- 3.Whether the claim was barred under the Trade Disputes Act (Cap 226) for failure to follow the dispute-reporting procedure
- 4.Whether the claim filed on 23rd April 2012 was time barred under section 90 of the Employment Act, 2007
- 5.Whether the memorandum of claim was defective for want of a properly dated verifying affidavit, justifying striking out
Key legal issues
#Accrual of cause of action in wrongful termination claims
The cause of action for wrongful termination accrues on the date of termination as communicated, not on the date of acquittal in a pending criminal case.
Relying on the Court's decision in Attorney General & Another v Andrew Maina Githinji, the court held that accrual takes effect from the date of termination stated in the letter communicating it. A pending review, appeal or criminal trial does not hold accrual in abeyance. Nyabuto's termination took effect on 27th June 2007, so time began running then, rendering the April 2012 claim statute barred.
Validity of the preliminary objection on limitation
The preliminary objection was properly taken, as a plea of limitation is a point of law which, if argued as a preliminary point, may dispose of the suit.
The court adopted Law JA's classic definition in Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd. The limitation issue arose as a point of law capable of disposing of the suit, so the Industrial Court judge was entitled to determine it without a full trial.
Applicable statute and limitation period
The claim was time barred both under the Trade Disputes Act (whose procedure Nyabuto failed to invoke by reporting the dispute to the Minister within twenty-eight days) and, alternatively, under section 90 of the Employment Act, 2007, which imposes a three-year limit.
The claimant pleaded the Employment Act, 2007, in force from 2nd June 2008, but filed on 23rd April 2012 - some 4 years and 10 months after termination, far beyond the three-year limit in section 90, which makes no provision for extension. Under the Trade Disputes Act, the dispute had not been reported to the Minister as required.
Defective memorandum of claim / verifying affidavit
The memorandum of claim was defective for want of a supporting affidavit in verification, and the lower court was entitled to take that into account in striking out the suit.
Counsel for the appellant argued on the basis of Erastus K. Wameya and Stanley Njoka Kenya that an undated verifying affidavit is not defective, but the court did not adopt that reasoning as its own; it affirmed the judge's conclusion that the claim had no supporting affidavit verifying it, in addition to being time barred.
Legal principles established
#- In a claim for wrongful or unfair termination, the cause of action accrues on the date of termination, and time for purposes of limitation runs from that date regardless of any pending review, appeal or criminal trial.
- A plea of limitation is a proper subject of a preliminary objection, being a point of law that may dispose of the suit.
- Under section 90 of the Employment Act, 2007, civil actions arising out of employment or a contract of service must be commenced within three years of the act, neglect or default complained of, and the section contains no provision for extension of time.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal (costs to the respondent)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya (Employment and Labour Relations Court) at Nairobi
- E.L.R.C Cause No. 574 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Industrial Court (Employment and Labour Relations Court) under the Employment and Labour Relations Court Act / Court of Appeal jurisdiction
Relief refused
#Setting aside the striking out of the appellant's claim as time barred and for want of a verifying affidavit, and reinstatement of the claim
The cause of action accrued on the date of termination, and the claim filed nearly five years later was statute barred; the court saw no reason to interfere with the decision of the learned judge
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows therefore that the cause of action which his claim is based accrued on 27th June, 2007 and that is the date when time began to run as against the appellant’s claim.
The fact that an employee whose employment has been terminated seeks a review or an appeal does not mean that accrual of the cause of action is held in abeyance until a final verdict on the review or appeal.
Given that position of the law, we are not satisfied and therefore see no reason to interfere with the learned Judge’s decision. We accordingly dismiss the appeal with costs.
Issues in the judgment
#The judgment refers to the Trade Disputes Act as Cap 226 in the grounds of appeal but as Cap 234 in the respondent's submissions, an internal inconsistency in chapter numbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabuto Arambe Abusa v Kenya Power & Lighting Company Limited [2017] KECA 220 (KLR)", Case Analysis (2017). Civil Appeal No. 302 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/220/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.