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ELRCStruck OutCause (as filed 12 September 2013) - Memorandum of Claim· [2014] KEELRC 945 (KLR)

Boniface Inondi Otieno v Mehta Electricals Limited [2014] KEELRC 945 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
11 April 2014
RSRadido Stephen
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker's unfair termination claim was struck out because it was filed nearly a year after the six-year legal deadline expired.

What this practically means

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Executive summary

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The Claimant filed a Memorandum of Claim on 12 September 2013 alleging unlawful termination of his employment by Mehta Electricals Ltd on 18 October 2006. The Respondent filed a Notice of Preliminary Objection on two grounds: res judicata and limitation of actions under section 4(1)(a) and (2) of the Limitation of Actions Act, which the Court directed be argued first. On res judicata, the Respondent relied on Mombasa SRMCC No. 559 of 2007 (a negligence damages suit), Mombasa Misc. Cause No. 2 of 2013 (an extension-of-time application), and proceedings before the Sudanese Director of Public Services and Administrative Reforms. The Court held the prior matters did not involve the issue of unfair termination, so their causes of action were not directly and substantially the same, and insufficient material showed the Sudanese Director was a competent court; the res judicata plea failed. On limitation, the Court held that because the termination predated the Employment Act 2007, the six-year contractual limitation period under section 4(1) of the Limitation of Actions Act applied, expiring on 17 October 2012. The Claim, filed 12 September 2013, was out of time, and following Divecon v Samani no court may extend time for contract-based actions. The Preliminary Objection was upheld on the limitation ground and the Memorandum of Claim was struck out with costs to the Respondent. The Court observed obiter that an abuse-of-process argument based on the earlier Misc. Cause might have had merit had it been argued.

Key legal issues

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01

Res judicata

Holding

The plea fails; the issues in the prior suits (negligence damages; extension of time) are not directly and substantially the same as the present claim of unfair termination, and the Sudanese proceedings were not shown to be before a competent court

Reasoning

Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue in the former suit be the same, between the same parties, before a competent court, and heard and finally decided. The Magistrate's Court suit concerned tort/negligence damages, not unfair termination. The Misc. Cause concerned extension of time, not unfair termination. The Respondent produced no material showing the Sudanese Director sat as a competent court.

p. 2
02

Limitation of actions

Holding

The cause of action, being contractual, is statute barred under section 4(1) of the Limitation of Actions Act; the Employment Act 2007 (s.90) does not apply as the termination occurred in 2006 before it came into operation

Reasoning

The repealed Employment Act Cap 226 had no limitation clause, so the Limitation of Actions Act applies. The contract-based six-year period expired on 17 October 2012; the Cause was filed 12 September 2013. Following Divecon v Samani, no court may extend time for contract-based actions.

p. 2

Legal principles established

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  • No court has power or jurisdiction to extend time for instituting a cause of action founded on contract outside the statutory limitation period
  • A party pleading res judicata must place before the Court the primary pleadings and the judgment of the former suit

Court orders

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  1. 1.Preliminary Objection upheld on the ground of limitation
  2. 2.Memorandum of Claim filed on 12 September 2013 struck out
  3. 3.Costs of the Cause awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Limitation of Actions Actsection 4(1) and 4(2)
  • Employment Act, 2007section 90
  • Employment Act, Cap 226 (repealed)

Cases cited (1)

  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court over a claim of unlawful termination of employment

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, "Boniface Inondi Otieno v Mehta Electricals Limited [2014] KEELRC 945 (KLR)", Case Analysis (2014). Cause (as filed 12 September 2013) - Memorandum of Claim. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/945/eng@2014-04-11

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