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ELRCDismissedNot stated in judgment· [2013] KEELRC 878 (KLR)

Gladys Amukoya Were v Mumias Sugar Company [2013] KEELRC 878 (KLR)

Employment and Labour Relations Court
6 November 2013
HWHellen Wasilwa
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a wrongful dismissal claim because it was filed more than three years after termination—file employment claims in Kenya promptly.

What this practically means

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Executive summary

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Gladys Amukoya Were, employed by the respondent from May 1988 and rising to Security Services Administrator, was suspended on 19.5.2009 and summarily dismissed on 8.6.2009 over allegations concerning a lost banker's cheque. She was charged in Butere Criminal Case No. 438 of 2009 with stealing and uttering a false document, and was acquitted on 26.11.2010 under Section 215 of the Criminal Procedure Code. She claimed her dismissal was malicious, unfair and in breach of procedure, as she was not accorded an opportunity to be heard before any committee, and sought 16 years' salary to retirement. The respondent, represented by Prof. Tom Ojienda and Associates, called no witnesses and contended the dismissal was lawful, that she was given an opportunity to defend herself which she failed to utilise, and that the suit was incompetent as substantially similar to HCC No. 81 of 2011 pending at the High Court in Busia. The court framed four issues: limitation, sub judice, due process and remedies. Deciding the limitation issue first, the court held under Section 90 of the Employment Act that whether time ran from the 8.6.2009 termination (three years, expiring 7.6.2012) or from cessation of the continuing injury on 26.11.2010 upon acquittal (twelve months, expiring 27.11.2011), the claim filed on 24.10.2012 was out of time, and the court had no discretion to extend time absent a prior request. The claim was dismissed with each party bearing its own costs; the remaining issues were not addressed as immaterial.

Key legal issues

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01

Limitation of actions under Section 90 of the Employment Act

Holding

The claim filed on 24.10.2012 was statute barred, whether time ran from termination on 8.6.2009 (expiring 7.6.2012) or from cessation of the continuing injury on 26.11.2010 (expiring 27.11.2011)

Reasoning

Section 90 of the Employment Act bars civil actions arising out of the Act or a contract of service unless commenced within three years of the act complained of, or within twelve months of cessation of a continuing injury. The court held the injury continued during the pendency of the criminal case, which ended on 26.11.2010, giving the claimant until 27.11.2011. Filing on 24.10.2012 exceeded both periods and the court lacked discretion to extend time absent a prior request, so the claim failed on limitation alone and the remaining issues need not be addressed.

p. 3

Legal principles established

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  • A claim based on or arising out of the Employment Act or a contract of service must be filed within three years of the act complained of, or within twelve months of the cessation of a continuing injury, and a court cannot extend time unless leave is sought before commencement of the suit

Court orders

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  1. 1.The claimant's claim is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Penal CodeSection 275
  • Penal CodeSection 353
  • Criminal Procedure CodeSection 215
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (admitted by respondent); claim under 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, "Gladys Amukoya Were v Mumias Sugar Company [2013] KEELRC 878 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/878/eng@2013-11-06

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