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ELRCDismissedCause not stated on the face of the extract (filed 2nd October 2013)· [2015] KEELRC 155 (KLR)

Joseph Sebastian Ringo v Kenya Railways Corporation [2015] KEELRC 155 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 November 2015
MMM. Mbaru
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An ex-Kenya Railways employee lost his terminal dues claim because he filed it seven years after his job was transferred — missing strict time limits.

What this practically means

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Executive summary

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The respondent, Kenya Railways Corporation, raised a preliminary objection contending that the claimant's claim, filed on 2nd October 2013, was time barred under section 90 of the Employment Act and section 87 of the Kenya Railways Corporation Act, and that the court lacked jurisdiction. The respondent argued that the claimant's employment had been transferred to Rift Valley Railways (Kenya) Limited under a concession agreement effective 1st November 2006, so he ceased being the respondent's employee from 25th/30th October 2006. The claimant countered that his transfer was irregular because of a pending disciplinary matter and criminal case (Criminal Case No.2228 of 2006), that he was later acquitted, and that upon termination by Rift Valley Railways on 15th December 2006 his employment reverted to the respondent for retrenchment and terminal dues, invoking section 16A of the Pensions Act and section 40(1)(g) of the Employment Act. The court framed two issues: whether the suit was statute barred, and whether it had jurisdiction. It held that the claimant's admitted transfer on 30th October 2006 terminated his employment with the respondent, that liabilities move with the transferred employee to the new employer, that section 16A retention rights were broken by the transfer, and that no redundancy was pleaded. The applicable law in 2006 was the repealed Employment Act Cap 226 with a six-year limitation period, and the Employment Act 2007 three-year period also could not save the claim. Section 87 of the Kenya Railways Corporation Act gave a shorter period and could not extend time. The preliminary objection was allowed, the suit dismissed with costs to the respondent.

Key legal issues

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01

Whether the suit was statute barred

Holding

The claim was filed out of time; limitation under the repealed Employment Act Cap 226 (6 years) and section 90 of the Employment Act 2007 (3 years) applied and was not met

Reasoning

The court found the claimant's employment transferred to Rift Valley Railways (Kenya) Limited by letter dated 30th October 2006, effective 1st November 2006, and terminated by the new employer on 15th December 2006. The claim filed in 2013 exceeded both the 6-year period under the repealed Employment Act via the Limitation of Actions Act and the 3-year period under section 90 of the Employment Act 2007. Section 87 of the Kenya Railways Corporation Act could not extend time as it gives a shorter period.

p. 5
02

Effect of transfer of employment under a concession agreement

Holding

Transfer of employment terminates employment with the principal employer; liabilities move with the employee to the new employer

Reasoning

Relying on the Wrigley and Washeke authorities, the court held that upon transfer the claimant ceased employment with the respondent; terminal dues owing had to be settled before takeover, and any claim lay with the new employer, with the respondent at most an interested party.

p. 4
03

Applicability of section 16A of the Pensions Act and section 40(1)(g) of the Employment Act

Holding

Neither provision applied; the Pensions Act retention right was broken by the transfer, and no redundancy was pleaded, and any section 40 claim had abated

Reasoning

Section 16A entitles an employee to be retained until gratuity is paid in full, but the transfer to a new employer broke that retention. Section 40(1)(g) redundancy claims must be brought within 3 years under section 90; the claimant never pleaded redundancy, and a 2006 claim had abated by the time of filing. The Shitiavi case was distinguished because the employee there remained with one employer.

p. 4

Legal principles established

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  • A transfer of employment ceases employment with the principal employer and any outstanding liabilities move with the transfer to the new employer, which must be settled before takeover

Court orders

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  1. 1.The preliminary objection on limitation is allowed
  2. 2.The suit is dismissed
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Kenya Railways Act / Kenya Railways Corporation Actsection 87; section 11A
  • Employment Actsection 90; section 87; section 40(1)(g); section 93
  • Limitation of Actions Actsection 4(1)
  • Pensions Actsection 16A
  • Employment Act (repealed), Cap 226
  • Court Rules (Industrial Court)Rule 4(e)

Cases cited (7)

  • Benson Asiego Mocheo versus Kenya Railways Corporation
    Cause No.487 of 2011
  • Langat versus Kenya Posts and Telecommunications Corporation
    [2000] 1 EA
  • Charles M Shitiavai versus City Council of Nairobi
    Cause No.2028 of 2011
  • Francis Mwamburi Mudegu versus African Boot Company Limited
    Cause No.695 of 2012
  • Francis Mwangi and Others versus The City Council of Nairobi & Others
    Cause No.561 (N) of 2009
  • Wrigley Company (EA) Limited versus the AG & 3 others
    Petition No.22 of 2012
  • Elizabeth Washeke & 62 others versus Airtel Networks (K) Limited & Another
    Cause No.1972 of 2013
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court; limitation under section 90 of the Employment Act and section 87 of the Kenya Railways Corporation Act

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, "Joseph Sebastian Ringo v Kenya Railways Corporation [2015] KEELRC 155 (KLR)", Case Analysis (2015). Cause not stated on the face of the extract (filed 2nd October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/155/eng@2015-11-25

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