Peter Wangai Kiama v Lawrence Gelmon & 2 others [2019] KECA 1008 (KLR)
The bottom line
#The Court of Appeal threw out a Kshs. 98 million employment claim because it was filed years too late and without first following the required dispute-resolution steps.
What this practically means
#Executive summary
#Key legal issues
#Time bar of the employment claim
The suit filed nearly eight years after termination was hopelessly out of time under both section 90 of the Employment Act (three years) and section 4/section 16 of the Limitation of Actions Act (six years), and the time-bar issue was res judicata having been determined in the earlier struck-out case
The termination occurred on 27 November 2002 and the suit was filed on 24 September 2010, nearly eight years later. Section 90 of the Employment Act bars suits after three years. Even applying the more favourable six-year contractual limitation period, the claim was out of time. An earlier dispute on the same matter, Industrial Case No. 751(N) of 2009, had been struck out as time-barred, making the issue res judicata. The suit was therefore incompetent and ought to have been struck out.
Exhaustion of statutory dispute-resolution mechanisms under the Trade Disputes Act
Under the Trade Disputes Act a suit could not be filed before a report was first made to the Minister, who would appoint a conciliator; the appellant made no such report, so the suit was premature and incompetent
The Trade Disputes Act required a dispute to be commenced by reporting it to the Minister who would appoint a conciliator. It was common ground that no such report was made. The court rejected the appellant's argument that this was a minor procedural omission, holding that statutory pre-action mechanisms must first be exhausted and that a suit filed before exhaustion flounders for unripeness.
Construction of a 'five year renewable' contract
The contract was a five-year contract with no guarantee of renewal; the claim for Kshs. 98 million based on a ten or fifteen-year assured term was fanciful
The court construed the term 'five year renewable' as meaning only that the parties could agree to enter into another contract for a similar term after expiry of the current term. Before any renewal happens the contract remains a five-year contract, with no warranty or guarantee of extension. The appellant's reasoning that 'a five year renewable contract means ten years' was unrealistic and could not ground the multi-million claim.
Lawfulness of the termination
The termination was lawful; the appellant was paid two months' salary in lieu of notice, more than he was entitled to, and his pursuit of elective politics justified the respondents' action
The respondents' regulations and their agreements obliged them to remain scrupulously non-political in their work in Kenya. The appellant's decision to run for the Juja Parliamentary seat created a conflict of interest, leaving the respondents no choice but to terminate. He was paid two months' salary in lieu of notice, which exceeded his entitlement, so nothing unlawful attended the termination.
Legal principles established
#- A suit under section 90 of the Employment Act cannot be brought after three years have lapsed from the events giving rise to the dispute; under the general law of contract the six-year limitation in the Limitation of Actions Act applies
- Where statutory mechanisms and procedures are in place for pre-action settlement of disputes, those mechanisms must first be exhausted; a suit filed before such exhaustion is premature and incompetent
- A 'five year renewable' contract is a five-year contract with no warranty or guarantee of renewal; renewal requires fresh agreement of the parties
- On a first appeal the court re-evaluates the evidence afresh but is slow to interfere with the trial judge's conclusions unless they are based on no evidence, proceed from a misapprehension of the evidence, or are plainly wrong
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 1170 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules from the Industrial Court of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munir Abubakar Masoud v Banking Insurance and Finance Union(K) [2016] KEELRC 64 (KLR)[2016] KEELRC 64 (KLR)14 Oct 2016
Cite this brief
#Cite this brief
Caselaw, "Peter Wangai Kiama v Lawrence Gelmon & 2 others [2019] KECA 1008 (KLR)", Case Analysis (2019). Civil Appeal No. 59 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1008/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.