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ELRCDismissedNot stated in judgment (memorandum of claim dated 12th May 2014, filed 13th May 2014)· [2015] KEELRC 491 (KLR)

Danson Ndeti v Board of Trustees National Social Security Fund [2015] KEELRC 491 (KLR)

Industrial Court of Kenya
25 September 2015
859 words in judgment
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The bottom line

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A Kenyan employee dismissed in 2006 lost his unfair dismissal claim because he filed suit eight years later, beyond the six-year legal deadline.

What this practically means

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Executive summary

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The Claimant sued for unlawful dismissal, alleging he was dismissed without adequate reasons after being charged in Nairobi Criminal Case No. 608 of 2006 with making a document without authority, uttering a false document and attempting to steal. He was acquitted on 1st July 2011 and wrote to the Respondent on 23rd March 2012 appealing the dismissal; the Respondent replied on 12th July 2012 maintaining the dismissal was lawful. The Respondent raised a preliminary objection that the suit, filed on 13th May 2014, offended section 4(1) of the Limitation of Actions Act Cap 22 and was time barred. The court framed the issue as whether the cause of action arose on the date of summary dismissal in July 2006 or on conclusion of the criminal case in 2011. Applying Divecon Ltd v Samani and its own earlier decision in Eunice Chebukwa Wanjala v Kenya Commercial Bank Ltd, the court held the cause of action arose on termination of the employment contract in 2006, that six years elapsed in 2012, and that awaiting the criminal trial did not suspend limitation since no statutory or internal appellate procedure had contributed to the delay. The court expressly disagreed with Benjamin Wachira Ndiithi v Public Service Commission & Another, holding instead that where an internal appeal mechanism exists, the cause of action arises upon its exhaustion. Upholding the preliminary objection, the court dismissed the suit with costs to the Respondent.

Key legal issues

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01

When the cause of action accrues in a summary dismissal claim

Holding

The cause of action arose on the date of dismissal (26th July 2006), not upon conclusion of the criminal case; awaiting a criminal trial does not extend the limitation period

Reasoning

The court held the cause of action arose from termination of the employment contract in July 2006. The Claimant did not pursue any statutory or internal appellate procedure that would have postponed accrual; he simply awaited the criminal trial, which does not suspend limitation. Six years elapsed on 20th July 2012, so a suit filed on 13th May 2014 was out of time.

p. 2
02

Effect of an internal appeal mechanism on accrual of the cause of action

Holding

Where a claimant takes advantage of a statutory or contractual appeal mechanism, the cause of action arises once the internal appeal is exhausted, not on the date of dismissal

Reasoning

The court expressly disagreed with the decision in Benjamin Wachira Ndiithi v Public Service Commission & Another, which held that the cause of action arises on the date of dismissal even where an appeal mechanism has been used. This court took the contrary view, holding accrual occurs on exhaustion of the internal appeal mechanism, whether statutory or contractual.

p. 2
03

Jurisdiction where suit is time barred

Holding

A suit filed outside the limitation period cannot be entertained for want of jurisdiction

Reasoning

Relying on Divecon Ltd v Samani and its own earlier decision in Eunice Chebukwa Wanjala v Kenya Commercial Bank Ltd, the court applied section 4(1) of the Limitation of Actions Act, which governed employment matters before the Employment Act 2007, and held it lacked jurisdiction over a suit filed about eight years after the cause of action arose.

p. 2

Legal principles established

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  • No action founded in contract may be brought after six years from the date the cause of action occurred
  • Where an internal appeal mechanism exists following dismissal, the cause of action arises once that mechanism is exhausted, be it statutory or contractual
  • Acquittal on criminal charges does not waive or suspend the limitation period for an employment claim

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Penal Codesection 357(e)
  • Penal Codesection 353
  • Penal Codesection 275
  • Limitation of Actions Actsection 4(1), Cap 22
  • Employment ActNo. 11 of 2007

Cases cited (3)

  • Divecon Ltd Vs Samani
    [1995 - 1998] EA 48 at 49
  • Eunice Chebukwa Wanjala Vs Kenya Commercial Bank Ltd
    Case No. 1150 of 2013
  • Benjamin Wachira Ndiithi Vs Public Service Commission & Another
    Industrial Cause No 953 of 2010
Jurisdiction invoked
Jurisdiction under section 4(1) of the Limitation of Actions Act Cap 22 as it governed employment matters prior to the Employment Act No. 11 of 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Danson Ndeti v Board of Trustees National Social Security Fund [2015] KEELRC 491 (KLR)", Case Analysis (2015). Not stated in judgment (memorandum of claim dated 12th May 2014, filed 13th May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/491/eng@2015-09-25

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