David Nyamai & 7 others v Del Monte Kenya Limited [2015] KEELRC 160 (KLR)
The bottom line
#Kenyan workers fired over theft accusations can sue within 12 months of being acquitted, as employer criminal allegations count as a continuing injury.
What this practically means
#Executive summary
#Key legal issues
#Pleading of the criminal case judgment
The claimants sufficiently pleaded the unfairness of the termination and filed the criminal case judgment as a document relied upon, so they may rely on it.
The memorandum of claim pleaded that termination was for alleged stealing of company fertilizer and was unfair and unlawful. Under section 43 of the Employment Act, an invalid or genuine reason for termination constitutes unfair termination. Having pleaded the reason and filed the criminal judgment in their list of documents, the claimants were within their pleadings; the respondent failed to show the criminal case fell outside the pleadings.
Limitation - continuing injury under section 90 of the Employment Act
The criminal allegation was a continuing injury that ceased on the date of the criminal court's judgment, so the suit filed on 24.10.2014 was within time.
Only criminal courts have jurisdiction to determine criminal liability. Where an employer alleges criminal conduct as reason for termination, the injury continues until resolved by the criminal court. Under section 90 of the Employment Act, the employee may file within 12 months of the cessation of the injury, being the date of judgment in the criminal case. The claimants were acquitted on 01.04.2014 and filed suit on 24.10.2014, within time.
Alternative limitation ground - action on a court judgment
Even in the alternative, the suit grounded on the acquittal order was within the 12-year period under section 4 of the Limitation of Actions Act.
The court relied on its earlier decision in Kenya Petroleum Workers Union v Kenya Pipeline Company Ltd, holding that a cause of action grounded on an acquittal order falls under the 12-year limitation period for actions based on a court judgment or order, so it would be contrary to substantive justice to dismiss the suit as time barred.
Legal principles established
#- An employer is not a prescribed court for making findings on criminal liability and lacks power to determine criminal guilt of an employee.
- Where an employer alleges criminal conduct as a reason for termination, that allegation is a continuing injury crystallising on the date of judgment in the criminal case, and under section 90 of the Employment Act the employee may file suit within 12 months of that date.
Court orders
#- 1.The preliminary objection on limitation was dismissed
- 2.Costs of the preliminary objection awarded to the claimants
- 3.Parties invited to take directions towards the hearing and determination of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90) and the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pauline Maisy Omung'ala Chesang v Chief Justice & President of the Supreme Court of Kenya & Another[2020] KEHC 4012 (KLR)24 Jul 2020followed
Cite this brief
#Cite this brief
Caselaw, "David Nyamai & 7 others v Del Monte Kenya Limited [2015] KEELRC 160 (KLR)", Case Analysis (2015). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/160/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.