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ELRCDismissedNot stated in judgment (referred to Criminal Case No. 1765 of 2011, Makadara Magistrate's Court)· [2015] KEELRC 9 (KLR)

Alex Odhiambo Omiti v Magnate Venture Limited [2015] KEELRC 9 (KLR)

Employment and Labour Relations Court
16 December 2015
MMM. Mbaru
1,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent filed a preliminary objection contending that the Claimant's suit for reinstatement, benefits, compensation and terminal dues, filed on 12th May 2015 following his summary dismissal on 27th April 2011, was statute barred under section 90 of the Employment Act, 2007. The Claimant replied that the delay was attributable to the Respondent's criminal complaint of 8th April 2011, which led to his arrest and charge in Criminal Case No. 1765 of 2011 at Makadara, from which he was released in February 2015 for lack of evidence; he argued the dismissal was premature and that the Respondent should have awaited the outcome of the criminal proceedings. The court held that section 90 is couched in mandatory terms, requiring claims to be filed within three years of the cause of action, with no judicial discretion to extend time. The cause of action was the summary dismissal of 27th April 2011, not the criminal discharge of February 2015, and criminal proceedings are no bar to commencement of civil employment claims; the duty lay on the Claimant to protect his rights when charges commenced or upon termination. Citing Gathoni v Kenya Co-operative Creameries, Maria Machocho v Total Kenya, Stephen Kamau Karanja v Family Bank and Charles Manono Onchiri v Kenyatta National Hospital, the court found the suit filed four years after the cause of action. The preliminary objection succeeded and the suit was dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the suit was filed within the limitation period under section 90 of the Employment Act

Holding

The suit was statute barred, having been filed four years after the summary dismissal which was the cause of action.

Reasoning

Both parties admitted the summary dismissal occurred on 27th April 2011 and the suit was filed on 12th May 2015. The cause of action under the Employment Act arose on the date of dismissal, not on the Claimant's criminal discharge in February 2015. Section 90 admits of no extension of time, so the claim filed four years later was time barred and the preliminary objection succeeded.

p. 2
02

Whether pending criminal proceedings excuse delay in filing an employment claim

Holding

They do not; the criminal process has its own momentum and purposes and does not bar or excuse late filing of a civil employment claim.

Reasoning

Relying on prior authorities including Stephen Kamau Karanja v Family Bank Ltd and Charles Manono Onchiri v Kenya National Hospital, the court held that a claimant must protect his rights when criminal charges commence or upon termination, and nothing prevented him from filing his civil claim within the permissible time. The Claimant's reliance on the criminal case as an excuse was rejected.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is mandatory: claims must be filed within three years of the cause of action and the Court has no discretion to extend time.
  • Criminal proceedings are not a bar to commencement of civil employment claims and do not excuse non-compliance with section 90.

Court orders

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  1. 1.The preliminary objection raised by the Respondent succeeds
  2. 2.The suit is dismissed
  3. 3.Each party shall meet their own costs

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 88(3)
  • Employment Act, Cap 226 (repeated as 'Employment Act, 226' in the judgment)
  • Limitations of Actions ActCap 22

Cases cited (6)

  • Fred Mudave Gogo versus G4S Security Services (K) Ltd
    [2014] eKLR
  • Stephen Kamau Karanja & Another versus Family Bank Ltd
    [2014] eKLR
  • George Musyoki versus Sarova Hotels
    [2014] eKLR
  • Maria Machocho versus Total Kenya Limited
    Misc. Civil Cause No. 2 of 2012
  • Gathoni versus Kenya Co-operative Creameries Ltd
    Civil Appl. No. 122 of 1981
  • Charles Manono Onchiri versus Kenya National Hospital & 2 others
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 limitation invoked)

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, "Alex Odhiambo Omiti v Magnate Venture Limited [2015] KEELRC 9 (KLR)", Case Analysis (2015). Not stated in judgment (referred to Criminal Case No. 1765 of 2011, Makadara Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/9/eng@2015-12-16

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