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ELRCDismissedCause No. 638 of 2013· [2015] KEELRC 368 (KLR)

Fredrick Ouma Ndar v Telkom Kenya Limited [2015] KEELRC 368 (KLR)

Employment and Labour Relations Court of Kenya
23 October 2015
HWHellen S. Wasilwa
956 words in judgment
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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 claimant, formerly an Intervention Senior Technician in the Respondent's Information Technology and Network Department earning Kshs.55,724/- per month, was interdicted on 18th December 2003 and dismissed on 29/4/2004. Following his appeal, he was reinstated on 31/3/2005 on condition that he forfeited salary and benefits for the dismissal period, a condition he accepted and under which he served until his retirement. He filed his Memorandum of Claim on 8/5/2013 seeking three months' salary in lieu of notice (Kshs.167,172/-), twelve months' salary for the dismissal period (Kshs.668,688/-), twelve months' salary as compensation for unfair and unlawful dismissal, plus costs and interest. The Respondent admitted the employment but contended the claimant had accepted the reinstatement condition, was lawfully retired per contract, and that the claim, filed nine years after the events, was time barred, misconceived and an abuse of process. The court framed two issues: whether the claim was time barred, and whether it was sustainable. Applying Section 4 of the Limitation of Actions Act (Cap 22), which bars contract actions brought after six years, the court held the cause of action accrued in 2005 upon reinstatement and the limitation period expired in 2011, making the 2013 filing an abuse of process. Finding no evidence on the alleged forced retirement, the court dismissed the entire claim with costs to the Respondent on 23rd October 2015.

Key legal issues

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01

Whether the claim was time barred

Holding

The claim was time barred. The cause of action, if any, accrued in 2005 upon the conditional reinstatement of the claimant, and the six-year limitation period under Section 4 of Cap 22 expired in 2011. Filing in 2013 was an abuse of the Court process.

Reasoning

The claimant was dismissed on 29/4/2004 but successfully appealed and was reinstated on 31/3/2005 on condition that he forfeited salary and benefits for the dismissal period. He accepted the condition and served until 2012. Any grievance about the reinstatement conditions accrued in 2005, and the six-year contractual limitation period under the Limitation of Actions Act (Cap 22) therefore expired in 2011, two years before the claim was filed in 2013.

p. 2
02

Whether the claim was sustainable

Holding

The claim was not sustainable. It was entirely time barred, and no evidence was adduced to support the claim of forced retirement.

Reasoning

The court found the entire claim time barred by operation of the Limitation of Actions Act. Additionally, on the claim for unlawful or forced retirement, the claimant did not produce the retirement letter or supporting documentation in Court, so there was no evidential basis for that head of claim.

p. 2

Legal principles established

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  • Actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued
  • A claimant dissatisfied with the conditions of reinstatement after dismissal must file a claim within the statutory limitation period; a claim filed beyond that period is time barred and an abuse of the Court process

Court orders

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  1. 1.The entire claim by the Claimant is dismissed as time barred
  2. 2.Costs of the claim are awarded to the Respondent

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 4(1)(a)
  • Employment Act (Cap 226) (now repealed)not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (claim filed as a Memorandum of Claim under Cause No. 638 of 2013)

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, "Fredrick Ouma Ndar v Telkom Kenya Limited [2015] KEELRC 368 (KLR)", Case Analysis (2015). Cause No. 638 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/368/eng@2015-10-23

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