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ELRCStruck OutNot stated in judgment· [2014] KEELRC 1000 (KLR)

Francis Somoni Kamasia v Unilever Tea Kenya Limited [2014] KEELRC 1000 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 May 2014
BOByram Ongaya
421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Act gives you only three years to sue over unfair dismissal—wait longer and your case will be struck out, no matter how strong.

What this practically means

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Executive summary

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The claimant, Francis Somoni Kamasia, filed a memorandum of claim on 11.10.2013 through Omwoyo Masese & Company Advocates, seeking a declaration that his dismissal was wrongful, terminal benefits totalling Kshs.1,548,017.20, compensation equivalent to twelve months' gross salary, general damages, reinstatement, costs and interest. The respondent, Unilever Tea Kenya Limited, through Murimi, Ndumia, Mbago & Muchela Advocates, filed a notice of preliminary objection on 28.10.2013 contending that the claim was statute barred and should be struck out with costs. The preliminary objection was heard on 8.05.2014. Neither the claimant nor his counsel attended; the respondent's counsel was allowed to prosecute the objection. It was submitted that the claim was barred by section 90 of the Employment Act 2007, which requires that civil actions arising from the Act or a contract of service be commenced within three years of the act, neglect or default complained of, or within twelve months of the cessation of a continuing injury. The claimant's own pleading recorded that he was summarily dismissed on 1.7.2009, so the limitation period expired on 1.7.2012, well before the suit was filed. In the absence of any opposition, the court held the objection valid, upheld it, struck out the memorandum of claim and awarded costs to the respondent. Judgment was delivered at Nakuru on 16th May 2014.

Key legal issues

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01

Whether the claimant's suit was barred by the limitation period in section 90 of the Employment Act 2007

Holding

The preliminary objection was upheld; the claim was time barred and was struck out

Reasoning

The claimant's own memorandum of claim pleaded that he was summarily dismissed on 1.7.2009, yet the claim was not filed until 11.10.2013. The three-year period prescribed by section 90 of the Employment Act lapsed on 1.7.2012. In the absence of any opposition or explanation from the claimant, who did not attend the hearing, the court found the objection valid.

p. 2

Legal principles established

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  • A civil action arising out of the Employment Act or a contract of service must be commenced within three years of the act, neglect or default complained of, or within twelve months of cessation in the case of continuing injury or damage

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The memorandum of claim is struck out
  3. 3.Costs of the preliminary objection to the respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Francis Somoni Kamasia v Unilever Tea Kenya Limited [2014] KEELRC 1000 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1000/eng@2014-05-16

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