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ELRCStruck OutMemorandum of claim dated 22nd September 2009 (Industrial Court)· [2012] KEELRC 262 (KLR)

MESHACK ANGENG’O OMONDI v ELDORET MUNICIPAL COUNCIL & another [2012] KEELRC 262 (KLR)

Industrial Court of Kenya
12 October 2012
BOByram Ongaya
1,892 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, Meshack Angeng'o Omondi, filed a memorandum of claim in the Industrial Court alleging that he was engaged as a general worker performing clerical duties from October 1992 until his unlawful dismissal on 9th September 2002, and sought a declaration of unlawful dismissal and compensation. Both Respondents filed preliminary objections: the 2nd Respondent arguing the claim was time barred under Section 90 of the Employment Act, 2007 and other limitation statutes and was res judicata; the 1st Respondent adding that the claim was frivolous, offended Section 12 of the Local Government Act, and was barred by the Limitation of Actions Act and the Public Authorities Limitations Act. The Claimant opposed, arguing Section 90 did not apply to a claim filed after the Employment Act came into force, that res judicata did not apply to the Industrial Court, and that Section 12 of the Labour Institutions Act conferred exclusive jurisdiction. The court framed two issues: res judicata and limitation. On res judicata it held that the prior High Court judicial review application under Order 53 was decided on procedural grounds only and could not found res judicata since it did not grant the declaratory and compensatory relief sought in the claim; the same applied to the Court of Appeal decision. On limitation, the dismissal occurred on 9th September 2002 and the claim was filed over seven years later, far beyond the three-year period in Section 90 of the Employment Act. The preliminary objections were upheld and the memorandum of claim was struck out with costs on 12th October 2012.

Key legal issues

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01

Res judicata

Holding

The doctrine does not apply because the prior High Court judicial review application was decided on procedural grounds only and was not a final judgment on the merits of the employment claim; the same applies to the Court of Appeal decision on leave to appeal out of time.

Reasoning

The court set out the three elements of res judicata: an earlier decision on the issue, a final judgment on the merits, and the same parties or their privies. It held that the Order 53 judicial review proceedings could only address procedural issues and prerogative orders, not the declaratory and compensatory relief sought in the memorandum of claim, so the prior proceedings were not an earlier decision on the issues raised in the claim.

p. 4
02

Limitation of actions

Holding

The claim was time barred under Section 90 of the Employment Act, 2007 because it was filed over seven years after the dismissal of 9th September 2002, beyond the three-year limitation period.

Reasoning

The court found the claim governed by the Employment Act, 2007, whose Section 90 requires civil actions arising out of the Act or a contract of service to be commenced within three years. The dismissal occurred on 9th September 2002 and the suit was filed on 13th January 2010, over seven years later. On that ground both preliminary objections were upheld and the claim struck out with costs.

p. 4

Legal principles established

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  • A judicial review proceeding under Order 53 confined to procedural considerations is not a final judgment on the merits for purposes of res judicata
  • Claims based on employment or a contract of service must be commenced within three years under Section 90 of the Employment Act, 2007

Court orders

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  1. 1.The memorandum of claim is struck out with costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(a) and (e); Section 4(1)
  • Public Authorities Limitations Actnull
  • Local Government ActSection 12
  • Trade Disputes ActCap. 234 (repealed)
  • Labour Institutions ActSection 12
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Articles 22(1) and 23(3)

Cases cited (2)

  • Republic -VS- Eldoret Water and Sanitation Company Limited Ex parte Booker Onyango, Meshack Omondi Ageng'o and John Kwambai Rotich
    High Court Miscellaneous Civil Application No. 97 of 2003 (Eldoret)
  • Booker Onyango, Meshack Omondi Ageng'o and John Kwambai Rotich - Versus - Eldoret Water Sanitation Company Limited
    Civil Application No. Nairobi 247 of 2008
Jurisdiction invoked
Jurisdiction of the Industrial Court under Section 12 of the Labour Institutions Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "MESHACK ANGENG’O OMONDI v ELDORET MUNICIPAL COUNCIL & another [2012] KEELRC 262 (KLR)", Case Analysis (2012). Memorandum of claim dated 22nd September 2009 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/262/eng@2012-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.