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ELRCOtherCause No 332 of 2014· [2014] KEELRC 1431 (KLR)

Kevin Omondi Odera v Flamco Ltd [2014] KEELRC 1431 (KLR)

Employment and Labour Relations Court
14 November 2014
RSRadido Stephen
1,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts apply a strict three-year deadline for unfair termination claims, and facing criminal charges does not extend that deadline.

What this practically means

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Executive summary

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Kevin Omondi Odera sued Flamco Ltd on 28 July 2014 for unfair termination, notice, overtime, off duties, public holidays, leave and gratuity, alleging his services were terminated in May 2011 on theft allegations, for which he was later acquitted in criminal proceedings. The Respondent raised a preliminary objection that the claim was time-barred under section 90 of the Employment Act, 2007, which requires such claims to be filed within three years of the act complained of. The Claimant argued that his acquittal in the criminal case gave rise to a continuing injury, so time began running only upon acquittal. The court distinguished the authority cited by the Respondent but adopted its own earlier reasoning in Stephen Kamau Karanja v Family Bank Ltd, holding that wrongful or unfair termination is a completed injury and that the pendency of criminal proceedings does not suspend limitation, since section 90 makes no such exception. The Claim having been filed more than three years after termination, the preliminary objection was upheld and the Memorandum of Claim filed on 28 July 2014 was struck out. Each party was ordered to bear its own costs. Judgment delivered at Nakuru on 14 November 2014 by Radido Stephen, Judge.

Key legal issues

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01

Whether criminal proceedings following termination amount to a continuing injury suspending limitation under section 90 of the Employment Act

Holding

They do not. Section 90 contains no exception for criminal proceedings; the only exception is continuing injury, limited to 12 months after cessation. The injury of dismissal is complete upon termination and the criminal process cannot extend it.

Reasoning

The court held an injury is the violation of a legal right, and the violation upon termination (breach of sections 41 and 45 rights to hearing and valid reasons) is complete at dismissal. Black's Law Dictionary defines continuing injury as one still in the process of being committed. Criminal proceedings have their own objectives and cannot restore the employment relationship or keep the injury in motion, and had Parliament intended suspension of time it would have said so expressly.

p. 3
02

Whether the preliminary objection on limitation should succeed

Holding

It was upheld; the Memorandum of Claim was filed outside the three-year period and was struck out.

Reasoning

Termination occurred in May 2011 and the claim was filed on 28 July 2014, about two months outside the three-year cap in section 90. The authority relied on by the Respondent was distinguishable because pendency of criminal proceedings was not in issue there, but the Claimant's acquittal argument failed because the cause of action arose at termination, not acquittal.

p. 3

Legal principles established

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  • The pendency of criminal proceedings arising from allegations leading to termination does not constitute a continuing injury or damage for purposes of section 90 of the Employment Act; limitation runs from the date of termination
  • Wrongful, unprocedural or unfair termination is a completed injury (fait accompli), not a continuing one

Court orders

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  1. 1.The Respondent's preliminary objection is upheld
  2. 2.The Memorandum of Claim filed in Court on 28 July 2014 is struck out

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007sections 41 and 45
  • Limitation of Actions Actsection 4(1)

Cases cited (2)

  • Francis Somoni Kamasia v Unilever Tea Kenya Ltd
    Nakuru Cause No. 334 of 2013
  • Stephen Kamau Karanja v Family Bank Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (cause filed 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 (1)

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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, "Kevin Omondi Odera v Flamco Ltd [2014] KEELRC 1431 (KLR)", Case Analysis (2014). Cause No 332 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1431/eng@2014-11-14

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