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ELRCStruck OutNot stated in the judgment extract· [2014] KEELRC 1387 (KLR)

Stephen Kamau Karanja & another v Family Bank Ltd [2014] KEELRC 1387 (KLR)

Employment and Labour Relations Court of Kenya
7 November 2014
RSRadido Stephen
1,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenyan employees dismissed from their jobs have only three years to sue for unfair dismissal—even if criminal charges against them are still pending in court.

What this practically means

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Executive summary

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The Claimants, former employees of Family Bank Ltd, were suspended on 21 August 2010 pending investigations into fraud and theft, and were summarily dismissed by letters dated 10 September 2010. They were charged in Nakuru Chief Magistrate's Court Criminal Case No. 4309 of 2010 and acquitted on 20 December 2013. They filed a joint Memorandum of Claim on 5 September 2014 alleging wrongful, unprocedural and unfair dismissal. The Respondent raised a preliminary objection that the Cause was statutorily time barred under section 90 of the Employment Act, 2007, which requires employment claims to be brought within three years of the act complained of, or within twelve months of the cessation of a continuing injury. The Claimants relied on the continuing injury limb, arguing that time did not run until the conclusion of the criminal case, citing Mafunya and Amukoya. Radido J declined to follow those decisions, holding with respect that he did not subscribe to the position taken by his judicial colleagues. The court reasoned that dismissal violates rights under sections 41 and 45 of the Employment Act at the moment of termination, producing a complete injury, and that the pendency of criminal charges does not make the injury continuing, as the criminal process has its own objectives and cannot restore the employment relationship. Had the legislature intended limitation to be suspended by criminal charges, it would have said so expressly. Holding that the Claim, filed about a year out of time, was statute barred, the court upheld the preliminary objection, dismissed the Memorandum of Claim with no order as to costs.

Key legal issues

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01

Whether dismissal coupled with pending criminal charges constitutes a continuing injury under section 90 of the Employment Act

Holding

It does not; the injury is complete upon termination and the three-year limitation period runs from the date of dismissal

Reasoning

The court held that an injury is the violation of a legal right and that sections 41 and 45 of the Employment Act confer rights to procedural fairness and valid reasons for termination, violated at the moment of dismissal. Relying on Black's Law Dictionary's definition of continuing injury, the court added underpayment of wages as an example, and concluded that dismissal is a fait accompli which cannot be rendered continuing by the pendency of criminal charges, since the criminal process has its own objectives and cannot restore the employment relationship.

p. 3
02

Whether the Claim filed on 5 September 2014 was within time

Holding

It was statute barred, dismissals having occurred on 10 September 2010

Reasoning

It was undisputed that the Claimants were dismissed on 10 September 2010 and that under section 90 of the Employment Act proceedings must be commenced within three years of the act complained of. The Claim was filed on 5 September 2014, roughly a year out of time. Since the dismissal was not a continuing injury, the criminal acquittal of 20 December 2013 was irrelevant to the computation of time.

p. 3

Legal principles established

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  • Wrongful, unprocedural or unfair termination is a complete injury suffered on the date of dismissal and is not a continuing injury by reason of pending criminal charges
  • Limitation time under section 90 of the Employment Act does not stop running because an employee has been charged with a criminal offence

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The Memorandum of Claim filed on 5 September 2014 is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsections 41 and 45
  • Limitation of Actions Actsection 4(1)

Cases cited (3)

  • Francis Somoni Kamasia v Unilever Tea Kenya Ltd
    Nakuru Cause No. 334 of 2013
  • Hesbone Gavunji Mafunya v Kenya Commercial Bank Ltd
    (2014) eKLR
  • Gladys Amukoya Were v Mumias Sugar Co.
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007; limitation governed by section 90 of 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 (9)

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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, "Stephen Kamau Karanja & another v Family Bank Ltd [2014] KEELRC 1387 (KLR)", Case Analysis (2014). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1387/eng@2014-11-07

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