Charles Manono Onchiri v Kenyatta National Hospital & 2 others [2013] KEELRC 624 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Employment Act, 2007 limitation period applies to a termination preceding its commencement
It does not; the Act has no retrospective application and disputes arising from contracts terminated before commencement are governed by the repealed Employment Act Cap. 226 and the Limitation of Actions Act
The court found no provision in the Employment Act, 2007 giving it retrospective operation. Section 93 sets out transitional provisions for subsisting contracts, but the claimant's contract ended on 30th November 2005, before commencement. The only retroactive effect is amendment of terms of still-subsisting contracts, not limitation of concluded ones. Any disputes on limitation must therefore be determined under the repealed Act and the Limitation of Actions Act.
Whether the criminal charges and subsequent acquittal suspended the limitation period
No; the criminal charges commenced before the termination and did not bar commencement of a civil claim, which was possible at any stage within the permissible time
Relying on Abdulla Ramadhan v Suleiman Haji, the court held criminal proceedings need not precede civil ones and an acquittal is no bar to civil proceedings. The claimant had no legal incapacity; nothing prevented him from filing his claim when terminated. Time ran from the date of termination, 30th November 2005, and lapsed on 30th November 2011.
Whether limitation is a mere technicality or a fundamental flaw justifying striking out
Limitation touches the substance of the claim and is not a mere technicality; the claim must fail
The court held the limitation bar goes to the substance of the claim. The law allows extension of time upon application on good grounds, but the claimant neither sought nor established such grounds, having been under no incapacity while the criminal case proceeded.
Legal principles established
#- The Employment Act, 2007 has no retrospective application and does not apply to contracts of service terminated before its commencement
- Criminal proceedings do not stop time running on a related civil claim; an acquittal in a criminal case is not a bar to, or a suspension of, civil proceedings
- Time in an employment claim founded on contract runs from the date of termination, and actions founded on contract may not be brought after six years under section 4(1) of the Limitation of Actions Act
Court orders
#- 1.The preliminary objection dated 1st February 2013 is upheld
- 2.The claim filed on 11th September 2012 is struck out
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour disputes (claim filed in the Industrial Court on 11th September 2012); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Yakub Ibrahim v International Committee of the Red Cross [2015] KEELRC 32 (KLR)[2015] KEELRC 32 (KLR)16 Dec 2015applied
- Alex Odhiambo Omiti v Magnate Venture Limited [2015] KEELRC 9 (KLR)[2015] KEELRC 9 (KLR)16 Dec 2015applied
- Philip Gitonga Mbiriti v Equity Bank Limited [2015] KEELRC 1059 (KLR)[2015] KEELRC 1059 (KLR)19 May 2015applied
Cite this brief
#Cite this brief
Caselaw, "Charles Manono Onchiri v Kenyatta National Hospital & 2 others [2013] KEELRC 624 (KLR)", Case Analysis (2013). Cause No 1627 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/624/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.