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ELRCStruck OutNot stated in judgment (ELRC claim filed 20.11.2014)· [2015] KEELRC 252 (KLR)

John Mugalla Mwaduma v Braeburn Schools Ltd t/a Braeburn International School Mombasa [2015] KEELRC 252 (KLR)

Employment and Labour Relations Court
13 November 2015
OMOnesmus Makau
1,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court struck out a Ksh 936,840 salary arrears claim because the employee waited too long, confirming Kenya's strict employment limitation deadlines.

What this practically means

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Executive summary

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The claimant sued on 20.11.2014 for Ksh 936,840 in salary arrears for the period 1.9.2004 to August 2010 (and nine years of service ending with resignation on 30.9.2013), alleging salary underpayment under five distinct fixed-term contracts. The respondent filed a preliminary objection dated 14.7.2015 contending the suit was time barred under section 90 of the Employment Act, which was disposed of by written submissions. The respondent argued that claims under contracts from 2004-2006 were barred by the six-year period under the Limitation of Actions Act, and later claims by the three-year period under section 90, so all claims expired before filing. The claimant, relying on Ezekiel Matagaro & 60 others v Maersk Kenya Ltd, contended that salary arrears claims accrue at termination of employment, hence time ran from 30.9.2013. The court held that section 90 contemplates two classes of cause of action: one-time injuries, barred after three years, and continuing injuries, barred twelve months after cessation. Filing within the limitation period does not shield an employee; the employee must show the cause of action arose within the statutory window. Treating the underpayment as a continuing breach, the claim expired twelve months after the last breach in August 2010; even reckoning accrual from termination on 30.9.2013, the twelve months lapsed on 30.9.2014 before filing. The Matagaro precedent was treated as persuasive only. The suit was struck out with no order as to costs.

Key legal issues

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01

Whether salary arrears claims under distinct fixed-term contracts constitute discrete or continuing causes of action under section 90 of the Employment Act

Holding

The suit is time barred whether treated as discrete breaches (3-year bar) or a continuing breach (12 months after last breach)

Reasoning

The court construed section 90 as creating a 3-year limitation for one-time injuries and a 12-month period after cessation for continuing injuries. The salary underpayment under the last contract ceased in August 2010, so even as a continuing breach the claim expired by end of July 2011. Alternatively, if accrual was from termination on 30.9.2013, 12 months lapsed on 30.9.2014, before the suit filed on 20.11.2014.

p. 2

Legal principles established

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  • Section 90 of the Employment Act contemplates two classes of cause of action: a one-time injury which expires after 3 years, and a continuing injury which expires 12 months after the last breach
  • Filing suit within the limitation period does not shield an employee from the statutory time bar; the employee must prove the cause of action arose within 3 years or that a continuing breach ceased within 12 months before filing

Court orders

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  1. 1.The suit is struck out
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; suit based on Employment Act and contracts of service

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, "John Mugalla Mwaduma v Braeburn Schools Ltd t/a Braeburn International School Mombasa [2015] KEELRC 252 (KLR)", Case Analysis (2015). Not stated in judgment (ELRC claim filed 20.11.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/252/eng@2015-11-13

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