Eliud Musila King’oo v David K. Mativo [2014] KEELRC 930 (KLR)
The bottom line
#A Kenyan worker denied re-entry after leave won his unfair dismissal claim because his employer kept no leave records and never pleaded a limitation defence.
What this practically means
#Executive summary
#Key legal issues
#Limitation of the claim
The claim was not time barred; limitation was not pleaded by the Respondent and the cause of action arose on 18th January 2007, before the Employment Act 2007, so the six-year period under the Limitation of Actions Act applies and the claim filed on 16th December 2010 was in time.
The court held limitation must be specifically pleaded as it touches jurisdiction, and the Respondent had not done so, being estopped from raising it in submissions. On the merits of limitation, reporting to the Labour Officer does not stop time running, and the Labour Relations Act gives the Minister only 30 days without extending limitation. Since the dismissal on 18th January 2007 predated the Employment Act 2007, the six-year contractual limitation under the Limitation of Actions Act governed, making the claim, filed just under four years later, valid.
Whether the Claimant was dismissed or absconded
The Claimant was terminated by the Respondent by not being allowed to resume duty after leave.
RW1 never stated when the Claimant absconded and did not deny that the Claimant was prevented from resuming work on 18th January 2007. He admitted the Claimant had indicated he would be away for a few days and that the Claimant customarily took leave in January. On that evidence the court preferred the Claimant's account that he went on permitted leave and returned to be told there was no job.
Entitlement to terminal dues
The Claimant was awarded one month's pay in lieu of notice (Shs. 9,000), rest days and public holidays worked (Shs. 26,315.40) and earned leave (Shs. 22,648.50), but the unpaid wages claim of Shs. 17,299.80 was dismissed as unproved.
A salary voucher confirmed a monthly salary of Shs. 9,000, supporting the notice claim. RW1's testimony that the Claimant worked 8am to 7pm, including holidays, was an admission entitling him to double rate for rest days and public holidays. The Respondent, under a statutory duty to keep leave records, did not prove leave was taken, so 127.25 days' leave accrued over 5 years 7 months; only the amount claimed was awarded.
Legal principles established
#- Limitation must be specifically pleaded or a party is estopped from raising it at the end of the case through submissions
- Reporting a dispute to the Ministry of Labour does not stop the running of the limitation period for an individual claimant
- The Labour Relations Act does not extend the limitation period for individual disputes
- Where the cause of action arose before the Employment Act 2007 came into force, the six-year limitation period under the Limitation of Actions Act applies
- An employer who fails to keep leave records cannot prove that an employee took annual leave
Court orders
#- 1.One month's salary in lieu of notice awarded at Shs. 9,000/-
- 2.Rest days and public holidays worked awarded at Shs. 26,315.40/-
- 3.Earned leave awarded at Shs. 22,648.50/-
- 4.Claim for unpaid wages of Shs. 17,299.80 dismissed for failure of proof
- 5.Claimant awarded costs of the suit
- 6.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Cause filed under the Industrial Court's jurisdiction over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Musila King’oo v David K. Mativo [2014] KEELRC 930 (KLR)", Case Analysis (2014). Cause No. 1561 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/930/eng@2014-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.