Clarice Odhiambo v Coca-Cola Company & 2 Others [2015] KEELRC 270 (KLR)
The bottom line
#A Kenyan court ruled that the six-year clock for suing over redundancy starts when you receive the termination letter, not the backdated date on it.
What this practically means
#Executive summary
#Key legal issues
#Date of accrual of the cause of action in a backdated redundancy termination
The cause of action accrued on 16th May 2007 when the Claimant received the letter of 15th May 2007 communicating the involuntary separation, not on the backdated date of 30th April 2007 which was merely the proposed termination date under the rejected voluntary separation offer
The 30th April 2007 date was the termination date under the proposed voluntary separation offer, which the Claimant never signed or accepted. The letter of 15th May 2007 communicated the involuntary separation by redundancy and purported to backdate the termination date. The Court held the letter communicated a date that was past; the Claimant could only sue on the termination actually communicated on 15th May 2007. Received on 16th May 2007, the six-year period expired on 16th May 2013, and the suit filed on 15th May 2013 was in time.
Applicable limitation regime - repealed Employment Act and Limitation of Actions Act vs Employment Act 2007
The employment was terminated in 2007 under the repealed Employment Act, which had no limitation provision; limitation was therefore governed by Section 4(1) of the Limitation of Actions Act (six years for contract), a point not in contest
The Court accepted the parties' common position that the 2007 termination was governed by the repealed Employment Act, which unlike Section 90 of the Employment Act 2007 contained no limitation period. Section 4(1) of the Limitation of Actions Act therefore applied, giving six years from accrual. The Court also endorsed the Divecon v Samani position that no extension of time is available for contract claims under section 4(1).
Limitation and jurisdiction
Limitation goes to jurisdiction; once a suit is time barred the court cannot enquire into the merits - but here there was jurisdiction because the suit was filed within time
Relying on Thuranira Karauri v Agnes Ndeche and the Owners of the Motor Vessel 'Lillian S' line of authority, the Court accepted that limitation is a jurisdictional issue to be dealt with first. However, having found the suit filed on the last day of the limitation period, the Court held jurisdiction existed.
Legal principles established
#- No court may entertain an action founded on contract brought more than six years after the cause of action accrued, nor extend that time
- A cause of action accrues only when all the facts that can precipitate a suit are in place; a claimant cannot sue on an intended redundancy not yet communicated
- The date of termination stated in a letter of termination is the date from which the cause of action accrues - as held in the authorities relied on by the Respondent
Court orders
#- 1.The Respondents/Applicants' notice of motion dated 22nd October 2014 is dismissed - the suit filed on 15th May 2013 was filed in time and remains properly before the Court ('Orders accordingly')
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment disputes; contested on the ground that the suit is statute-barred under Section 4(1)(a) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clarice Odhiambo v Coca-Cola Company & 2 Others [2015] KEELRC 270 (KLR)", Case Analysis (2015). Cause No 694 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/270/eng@2015-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.