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ELRCDismissedIndustrial Court Misc. Appl. No. 10 of 2011· [2013] KEELRC 490 (KLR)

ZADOCK O. OLOO V DENHILL ENGINEERING [2013] KEELRC 490 (KLR)

Industrial Court of Kenya
13 March 2013
394 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed that employment claims predating the 2007 Employment Act have six years to be filed, so this worker's suit went ahead.

What this practically means

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Executive summary

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This ruling of the Industrial Court, delivered by Mathews N. Nduma, Principal Judge, on 13th March 2013, determined a preliminary application dated 6th September 2011 in a dispute originating as CMCC Cause No. 948 of 2007 before the Chief Magistrate's Court Milimani. The plaintiff's employment was allegedly unlawfully terminated on 11th April 2006. On 23rd May 2011 the Chief Magistrate directed that the matter be filed at the Industrial Court as the proper forum, and it was filed there on 6th September 2011, five years and five months after the cause of action arose. The court framed the question as which limitation regime governed the claim. It held that because the cause of action predated the Employment Act, 2007, the applicable law was the repealed Employment Act, Cap 226, which contained no limitation clause, unlike Section 90 of the 2007 Act. The dispute was therefore governed by the Limitation of Actions Act, Cap 22, and in particular Section 4(1), which bars contract actions brought after six years from accrual. As the claim was founded on contract and/or sums recoverable by virtue of written law, the six-year period applied, and the suit, filed within that period, was not time-barred. The court dismissed the application with costs and directed that the suit take its normal course. The decision is consistent with the court's earlier ruling in Daniel Songa Sila v Property Development & Management Ltd.

Key legal issues

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01

Applicable limitation regime for pre-2007 employment disputes

Holding

The dispute is governed by the Limitation of Actions Act, Cap 22, not Section 90 of the Employment Act, 2007, because the cause of action arose before the 2007 Act came into force and the repealed Employment Act, Cap 226 had no limitation clause.

Reasoning

The cause of action arose on 11th April 2006, before the Employment Act, 2007 was enacted. The law then applicable was the repealed Employment Act, Cap 226, which, unlike Section 90 of the 2007 Act, contained no limitation provision. The court therefore resorted to the general limitation statute, Cap 22, whose Section 4(1) prescribes a six-year period for actions founded on contract and claims recoverable by virtue of written law, both of which descriptions cover the present claim.

p. 1
02

Whether the suit was filed out of time

Holding

The suit was filed within the six-year limitation period and therefore not time-barred.

Reasoning

The cause of action arose on 11th April 2006 and the matter was filed at the Industrial Court on 6th September 2011, five years and five months later. Since the applicable period is six years from accrual, the filing was timely. The application premised on limitation therefore failed and was dismissed with costs, with the suit proceeding in its normal course.

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Legal principles established

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  • Where the cause of action predates the Employment Act, 2007, the erstwhile Employment Act, Cap 226 (repealed) applies, and since it contained no limitation clause, the general six-year limitation period in Section 4(1) of the Limitation of Actions Act, Cap 22 governs contract-based employment claims.
  • An employment action founded on contract must be brought within six years from the date the cause of action accrued.

Court orders

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  1. 1.The Application dated 6th September, 2011 is dismissed
  2. 2.Costs of the application awarded to the respondent/plaintiff
  3. 3.The suit should take its normal course

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, Cap. 226 (now repealed)not specified
  • Limitation of Actions Act, Cap 22Section 4(1)

Cases cited (1)

  • Daniel Songa Sila –Vs- Property Development & Management Ltd
    Industrial Court Cause No. 375 of 2011
Jurisdiction invoked
Transfer to the Industrial Court under the order of the Chief Magistrate's Court Milimani dated 23rd May, 2011; the matter was then governed by the pre-2007 industrial court jurisdiction (Trade Disputes regime), the judgment not citing a specific enabling provision

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, "ZADOCK O. OLOO V DENHILL ENGINEERING [2013] KEELRC 490 (KLR)", Case Analysis (2013). Industrial Court Misc. Appl. No. 10 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/490/eng@2013-03-13

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