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ELRCDismissedIndustrial Court, Memorandum of Claim dated 7th June 2012 (Nairobi HCCC No.21 of 2009 predecessor)· [2013] KEELRC 352 (KLR)

CATHERINE AUMA OGELLO V KENYA LITERATURE BUREAU [2013] KEELRC 352 (KLR)

Industrial Court of Kenya
30 April 2013
MOMAUREEN ONYANGO
1,040 words in judgment
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The bottom line

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The Industrial Court dismissed a 2012 unfair dismissal claim because the 2006 dismissal was filed too late, past Kenya's six-year limitation period.

What this practically means

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Executive summary

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The Claimant sued alleging unlawful summary dismissal by the Respondent following investigations into stock shortages and alleged double invoicing, seeking a declaration of unlawful dismissal, a retirement settlement package or alternatively 12 months' salary in damages, general damages, costs and interest. The dismissal occurred on 16th February 2006, and a prior suit (Nairobi HCCC No.21 of 2009) was dismissed for want of prosecution. The Respondent raised a Notice of Preliminary Objection on grounds of limitation, lack of jurisdiction over pre-2007 disputes, res judicata and abuse of process. The Court heard the objection in the Claimant's absence after confirming proper service. On jurisdiction, the Court held that the Industrial Court has always had jurisdiction over employment disputes under both current and repealed employment legislation; the filing process determined whether jurisdiction attached, so this ground of the objection failed. On limitation, the Court agreed with the Respondent: the cause of action arose in 2006 and the suit should have been commenced within six years. The prior suit, dismissed for want of prosecution, could have been filed afresh only within the limitation period, which had expired when this suit was filed in 2012, without leave or any plea for extension of time. The claim was therefore time barred and the Court lacked jurisdiction to hear it. The suit was dismissed with costs to the Respondent, the Claimant having brought the Respondent to court unnecessarily for a second time.

Key legal issues

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01

Jurisdiction over pre-2007 employment disputes

Holding

The objection was rejected; the Industrial Court has always had jurisdiction over employment disputes, but the filing process determined whether jurisdiction was assumed

Reasoning

Under the Trade Disputes Act only trade union disputes referred by the Minister reached the Industrial Court, excluding individual employees. After the Employment Act 2007 and Labour Institutions Act 2007 the Court acquired exclusive jurisdiction over employment disputes, so the timing of filing governed access, not the date of the cause of action.

p. 2
02

Limitation of actions

Holding

The claim, arising in 2006 and filed in 2012, was time barred under the six-year limitation period in Section 4 of the Limitation of Actions Act

Reasoning

The cause of action arose on 16th February 2006. A prior suit, Nairobi HCCC No.21 of 2009, was dismissed for want of prosecution. A fresh suit could only be filed within the six-year limitation period, which had expired. The Claimant neither sought leave for extension nor disclosed the prior suit.

p. 2

Legal principles established

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  • The Industrial Court had jurisdiction over employment disputes arising under both current and repealed employment legislation; whether it assumed jurisdiction depended on the process by which the dispute was filed
  • A suit dismissed for want of prosecution may be filed afresh only before expiry of the limitation period

Court orders

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  1. 1.The claim is dismissed
  2. 2.The Claimant shall pay the Respondent's costs of defending the claim

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4
  • Employment Act, 2007null
  • Labour Institutions Act 2007null
  • Trade Disputes Act Cap.234null
  • Labour Relations Actnull

Cases cited (1)

  • Patrick Ochieng Onyango and East African Growers
    Case No.741 of 2011
Jurisdiction invoked
Industrial Court jurisdiction under the Labour Relations Act and Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CATHERINE AUMA OGELLO V KENYA LITERATURE BUREAU [2013] KEELRC 352 (KLR)", Case Analysis (2013). Industrial Court, Memorandum of Claim dated 7th June 2012 (Nairobi HCCC No.21 of 2009 predecessor). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/352/eng@2013-04-30

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