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ELRCDismissedCause Number 60 of 2011· [2013] KEELRC 552 (KLR)

David Kitongu Mutooni v Kenya Pipeline Co. Ltd [2013] KEELRC 552 (KLR)

Industrial Court of Kenya
28 June 2013
JRJames Rika
611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a former Kenya Pipeline employee's wrongful dismissal claim because he filed it 8 years late and under the wrong law.

What this practically means

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Executive summary

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The Claimant, a former employee of Kenya Pipeline Co. Ltd, was summarily dismissed on 15 October 2003 after being found guilty by the Central Region Staff Disciplinary Committee of presenting false medical claims. His appeal against the dismissal was lodged on 21 October 2003 and rejected by letter dated 5 December 2003. On 19 January 2011 he filed a Statement of Claim seeking three months' salary in lieu of notice, severance pay, leave allowance, unpaid salary, general damages for malicious and wrongful termination, costs and interests. The Respondent filed a Reply and a supplementary bundle of documents. Evidence was taken from the Claimant and from the Respondent's Human Relations Officer, Ezekiel Kandargor; proceedings were interrupted by the reorganisation of the Industrial Court under the new Constitution in 2012. The Court held that the claim was not properly before it: the cause of action predated the Employment Act 2007 and the Labour Relations Act 2007, so pre-2007 dismissal claims must follow the procedure established by the repealed Trade Disputes Act Cap 234, as set out in Section 84 of the Labour Relations Act, Schedule 5. The Court further noted that the Claimant did not identify the substantive law relied on; a claim under the repealed Employment Act Cap 226 would be statute-barred under the Limitation of Actions Act Cap 22, and one under the Employment Act 2007 would be barred by Section 90. The claim was disallowed with no order on the costs.

Key legal issues

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01

Proper procedural framework for pre-2007 employment claims

Holding

The Claimant's cause of action arose before the Employment Act 2007 and Labour Relations Act 2007 came into force; his claim should have been brought under the procedure established by the repealed Trade Disputes Act Cap 234, per Section 84 of the Labour Relations Act, Schedule 5.

Reasoning

The Claimant was summarily dismissed on 15 October 2003 and lost his appeal on 5 December 2003, both dates predating the 2007 statutes. The transitional provisions in Section 84 of the Labour Relations Act, Schedule 5 prescribed the procedure he should have followed. Having failed to do so, his claim was not properly before the Court.

p. 3
02

Limitation of the claim

Holding

Whichever substantive law the Claimant relies on, the claim is time-barred - under the Limitation of Actions Act Cap 22 if under the repealed Employment Act Cap 226, or under Section 90 of the Employment Act 2007 if under the new Act.

Reasoning

The Claimant did not clarify the substantive law he relied upon. The Court considered both possibilities: a claim under the repealed Employment Act would be statute-barred under the Limitation of Actions Act Cap 22; a claim under the Employment Act 2007 would be barred by the inbuilt temporal limitation in Section 90. Either way, the claim filed 8 years after the dismissal appeal failed could not stand.

p. 3

Legal principles established

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  • Summary dismissal and unfair termination claims arising before the coming into force of the Labour Relations Act must be filed and heard under the procedure established by the repealed Trade Disputes Act Cap 234, as outlined in Section 84 of the Labour Relations Act, Schedule 5
  • Claims under the repealed Employment Act Cap 226 are barred by the Limitation of Actions Act Cap 22, and claims invoking the Employment Act 2007 are barred by the temporal limitation in Section 90 of that Act

Court orders

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  1. 1.The Claim is disallowed with no order on the costs

Authorities

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Legislation

  • Labour Relations ActSection 84, Schedule 5
  • Trade Disputes Act Cap 234 (repealed)
  • Employment Act Cap 226 (repealed)
  • Employment Act 2007Section 90
  • Limitation of Actions Act Cap 22
Jurisdiction invoked
Jurisdiction to hear pre-2007 summary dismissal and unfair termination claims governed by the repealed Trade Disputes Act Cap 234 and Section 84 of the Labour Relations Act, Schedule 5; limitation under the Limitation of Actions Act Cap 22 and Section 90 of the 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, "David Kitongu Mutooni v Kenya Pipeline Co. Ltd [2013] KEELRC 552 (KLR)", Case Analysis (2013). Cause Number 60 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/552/eng@2013-06-28

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