ZAKARIA LIAMBU ANDIKA V CHEER LOGIC MANAGEMENT CONSULTANTS LTD [2012] KEELRC 200 (KLR)
The bottom line
#Kenya's Industrial Court ruled a wrongfully dismissed employee couldn't be time-barred by the new Employment Act, awarding him 10 months' salary because employers must prove contract expiry with documents.
What this practically means
#Executive summary
#Key legal issues
#Limitation of the claim
The suit was not statute barred; Section 90 of the Employment Act 2007 did not apply retrospectively, and the Limitation of Actions Act Cap.22 six-year period applied, which had not expired
The cause of action arose in 2004/2005 and the suit was filed on 17 September 2010, within six years. The Employment Act 2007 was enacted after the contract ended and cannot operate retrospectively. The repealed Employment Act Cap.226 had no limitation clause, so the six-year rule in Section 4(1) of the Limitation of Actions Act Cap.22 governed the contractual and statutory claims.
Applicable substantive law
The repealed Employment Act Cap.226 and Trade Disputes Act Cap.234 apply to the dispute
Following the non-retrospectivity finding, the law at the time the cause of action crystallised governs. Section 2(4) of the fifth schedule of the Labour Relations Act 2007 provides that trade disputes and summary dismissals predating its commencement are determined under the Trade Disputes Act. The matter falls within paragraphs 2(4)(a) and (d) of that schedule.
Termination versus effluxion of time
The claimant was summarily dismissed without any reason on 3 January 2005; the respondent's fixed-term contract narrative was unsubstantiated
The respondent admitted continuous employment from 1998 but alleged a one-year contract from January 2004, producing no written contract or evidence of its expiry. The claimant's letter of appointment showed permanent and pensionable terms, corroborated by his payslip and a contemporaneous statement. On a balance of probabilities, the claimant's coherent and credible account of summary dismissal prevailed.
Procedural access under the Trade Disputes Act
The claim was rightly brought directly by the individual employee under the Labour Institutions Act 2007; the restrictive procedure of the Trade Disputes Act did not invalidate the suit
Under the Trade Disputes Act only unions and employers' organisations could access the Industrial Court, with ministerial reporting and certification requirements. The Labour Institutions Act 12(2) opened direct access to individual employees, a provision retained verbatim in Section 12(2) of the Industrial Court Act 2011. The claimant thus lawfully approached the court directly, while the substantive claim was resolved under the repealed law.
Remedies
Ten months' salary compensation plus one month in lieu of notice awarded; leave, severance, advocate's fees and housing allowance claims dismissed
The claimant, dismissed without reason after six years with a clean record, deserved compensation; conduct of the respondent was unconscionable and inhumane, warranting ten of the twelve months' maximum under Section 15(1) of the Trade Disputes Act. Notice pay was contractual under clause 8 of the appointment letter. Accrued leave, severance, housing allowance and advocate's fees claims failed for lack of proof or lack of legal foundation.
Legal principles established
#- Statutory provisions do not operate retrospectively; where a cause of action predates the Employment Act 2007, limitation is governed by the Limitation of Actions Act Cap.22 (six years)
- Trade disputes arising or summary dismissals occurring before commencement of the Labour Relations Act 2007 are determined under the repealed Trade Disputes Act and Employment Act Cap.226, per the fifth schedule transitional provisions
- An employer alleging expiry of a fixed-term contract or non-renewal must produce documentary evidence; bare allegations cannot displace credible evidence of permanent employment
- The Labour Institutions Act 2007 (retained in the Industrial Court Act 2011) gave individual employees direct access to the Industrial Court without union membership or ministerial permission
Court orders
#- 1.Ten (10) months salary at the rate of Kshs.10,833/- per month as compensation for wrongful/unlawful dismissal
- 2.One (1) month salary in lieu of notice in the sum of Kshs.10,833/-, total Kshs.118,866/-
- 3.Interest at court rates from the date of judgment
- 4.The Respondent shall pay costs of the case
- Jurisdiction invoked
- Section 12 of the Labour Institutions Act, No.12 of 2007 and Section 73 of the Labour Relations Act No.14 of 2007
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.
- JEREMIAH OJWANG OJAK V CENTRAL BANK OF KENYA [2012] KEELRC 202 (KLR)[2012] KEELRC 202 (KLR)28 Nov 2012applied
Cite this brief
#Cite this brief
Caselaw, "ZAKARIA LIAMBU ANDIKA V CHEER LOGIC MANAGEMENT CONSULTANTS LTD [2012] KEELRC 200 (KLR)", Case Analysis (2012). Cause 1075 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/200/eng@2012-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.