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ELRCDismissedMemorandum of Claim dated 5th June 2013· [2014] KEELRC 713 (KLR)

Fred Mudave Gogo v G4s Security Services (K) Ltd [2014] KEELRC 713 (KLR)

Industrial Court (Employment and Labour Relations Court)
16 January 2014
MMM. Mbaru
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant sued on 5th June 2013 for wrongful dismissal and unpaid terminal dues of Kshs.284,548.70 following termination on 8th August 2008. The respondent filed a preliminary objection contending the claim was time barred under section 90 of the Employment Act, that the claimant lacked capacity to sue, and that the suit was an abuse of process and should be struck out with costs. The claimant argued his engagement was under an 'employment contract' rather than a 'contract of service', relying on Maurice Oduor Oketch v Chequered Flag Ltd, so that section 4(1) of the Limitation of Actions Act (six years) applied rather than the three-year limit in section 90, and that the objection raised a technicality contrary to Article 159(2)(d) of the Constitution. The court held that an employment contract and a contract of service are one and the same, distinguishing Oketch as concerning a contract for service, and found the claimant worked under the respondent's control as an employee. It further held the Employment Act, 2007 contains no retrospective provision, applying only to subsisting contracts. Since the claim was filed more than three years after termination, it had lapsed; limitation was held to touch substance, not mere technicality, and no good grounds for the delay were advanced. The preliminary objection was upheld, the claim was dismissed, and as the respondent had not filed a defence, each party was ordered to bear its own costs.

Key legal issues

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01

Distinction between employment contract and contract of service

Holding

No distinction exists; an employment contract is equivalent to a contract of service under section 2 of the Employment Act

Reasoning

The court held that both an employment contract and a contract of service entail an employee undertaking work with rights and duties for specified remuneration, as opposed to a contract for service which indicates independence and lack of control. The claimant worked under the respondent's control and was not an independent employee, so the Maurice Oduor Oketch case was distinguishable.

p. 2
02

Retrospectivity of section 90 of the Employment Act, 2007

Holding

The Act has no retrospective application; section 90 applies only to contracts still subsisting at commencement, so the applicable limitation law is a matter of the applicable statute at termination

Reasoning

The court examined whether the Employment Act, 2007 extinguished rights arising from contracts terminated before commencement, found no provision granting retrospective effect, noting the Act only amends terms of subsisting contracts. Nevertheless the claim, filed over three years after termination on 8th August 2008, had lapsed by operation of the applicable limitation law.

p. 3

Legal principles established

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  • An employment contract and a contract of service are one and the same for purposes of section 90 of the Employment Act
  • The Employment Act, 2007 has no retrospective application to contracts of service terminated before its commencement
  • Section 90 of the Employment Act imposes mandatory limitation of three years

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Claim dated 5th June 2013 dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 2
  • Employment Act, 2007
  • Limitation of Actions Actsection 4(1)
  • Employment Act, Cap 226 (repealed)
  • Trade Disputes Act, Cap 234 (repealed)
  • Constitution of KenyaArticle 159(2) and (d)

Cases cited (3)

  • Peter Nyamai & 7 others versus M. J. Clarke Limited
    [2013] eKLR
  • Kenya Scientific Research International & Allied Workers Union versus T.N.S. Research International Limited
    Cause No. 27(N) of 2010
  • Maurice Oduor Oketch versus Chequered Flag Ltd
    [2013] eKLR
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment claims; preliminary objection on limitation under section 90 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fred Mudave Gogo v G4s Security Services (K) Ltd [2014] KEELRC 713 (KLR)", Case Analysis (2014). Memorandum of Claim dated 5th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/713/eng@2014-01-16

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