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ELRCOtherNot stated in the judgment provided· [2013] KEELRC 877 (KLR)

Patrick Nyakonu Ombati v Credit Bank Limited [2013] KEELRC 877 (KLR)

Industrial Court of Kenya
3 October 2013
HWHellen Wasilwa
832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that an unfairly dismissed worker could sue even years later, because the clock only started after his criminal acquittal.

What this practically means

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Executive summary

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Credit Bank Limited, the respondent, filed a preliminary objection against a claim by its former employee. It argued first that the claim was time barred under Section 90 of the Employment Act 2007, the claimant having been terminated on 6 February 2006, and that no extension of time had been sought, relying on Peter Nyamai & 7 Others v V. M. J. Clarke Limited [2013] eKLR. Second, it contended that the court lacked jurisdiction over paragraphs 35(g) and (h) of the memorandum of claim, seeking damages for racial discrimination and malicious damage, as claims outside the Industrial Court Act 2011. The claimant opposed, contending the cause of action arose on 19 November 2010 when criminal proceedings instituted by the respondent ended in his acquittal, that Section 90 of the 2007 Act could not apply retrospectively to a 2006 dismissal, and that the court's jurisdiction under Article 162(2) and Section 12 of the Industrial Court Act 2011 covered the dispute. The court framed two issues: limitation and jurisdiction. On limitation, it held the dismissal predated the Employment Act 2007, so applying Section 90 would be retrospective; the claimant could not sue while the criminal case was pending, and filing within three years of the acquittal of 19 November 2010 was in time. On jurisdiction, the dispute arose from employment under Section 12(1)(a), and splitting the claim across forums would violate the claimant's right of access to justice under Article 48. The preliminary objection was dismissed. No costs order was stated.

Key legal issues

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01

Whether the claim is time barred under Section 90 of the Employment Act 2007

Holding

The claim is not time barred. The dismissal occurred on 6.2.2006 under the pre-2007 law, so Section 90 of the Employment Act 2007 cannot apply retrospectively; the cause of action accrued on acquittal on 19.11.2010 and the claim filed within 3 years of that acquittal is in time.

Reasoning

The claimant was dismissed on 6 February 2006, before the Employment Act 2007 came into force. Applying Section 90 of that Act to the dismissal would amount to retrospective application of the statute, which the court declined. The claimant could not reasonably have sued while criminal charges instituted at the respondent's instigation were pending; he was acquitted on 19 November 2010. Having filed within three years of the acquittal, the claim remains within the limitation period.

p. 2
02

Whether the court has jurisdiction to entertain the claim, including the prayers for damages for racial discrimination and malicious damage

Holding

The court has jurisdiction. The dispute arises out of employment between employer and employee under Section 12(1)(a) of the Industrial Court Act 2011, and denying audience on some prayers would violate Article 48 on access to justice.

Reasoning

Jurisdiction is founded on Article 162(2) of the Constitution and Section 12 of the Industrial Court Act 2011, which confers exclusive original and appellate jurisdiction over disputes arising out of employment. The whole dispute arises from the employment relationship, and it would be imprudent to require the claimant to pursue some prayers in one court and the rest in another. Framing jurisdiction narrowly to defeat certain prayers would impede the claimant's constitutionally guaranteed access to justice under Article 48.

p. 2

Legal principles established

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  • Section 90 of the Employment Act 2007 does not apply retrospectively to dismissals occurring before the Act came into force; where the claimant could not sue until acquittal in criminal proceedings, limitation runs from the acquittal.
  • The Industrial Court has exclusive original jurisdiction over disputes arising out of employment between employer and employee under Article 162(2) and Section 12(1)(a) of the Industrial Court Act 2011.
  • A claimant should not be split between forums; denying audience over some prayers would infringe the right of access to justice under Article 48.

Court orders

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  1. 1.The preliminary objection filed by the respondent Credit Bank Limited is dismissed as it has no merit

Authorities

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Legislation

  • Employment Act 2007Section 90
  • Industrial Court Act 2011Preamble; Section 12(1)(a)
  • Constitution of Kenya 2010Article 162(2); Article 48
  • Interpretation and General Provisions Act (Cap 2)Section 23(3)(b), (c), (d) and (e)

Cases cited (1)

  • Peter Nyamai & 7 Others =VS= V. M. J. Clarke Limited
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Industrial Court Act 2011

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, "Patrick Nyakonu Ombati v Credit Bank Limited [2013] KEELRC 877 (KLR)", Case Analysis (2013). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/877/eng@2013-10-10

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