Sewira Fundi Maina v Inland Services Company Limited & 2 others [2015] KEELRC 655 (KLR)
The bottom line
#A Kenyan employee forced out by workplace changes won Kshs. 162,000 for unfair dismissal, but older dues claims were thrown out for being filed too late.
What this practically means
#Executive summary
#Key legal issues
#Limitation of the claim for dues from the 1st Respondent
The claim was time barred; the applicable limitation was 6 years for contract under the Limitation of Actions Act, not Section 90 of the Employment Act 2007 which is not retrospective
The claim accrued in December 2003 when the 1st Respondent ceased operations. The repealed Employment Act Cap 229 had no express limitation period, so the Limitation of Actions Act Section 4(1) applied, allowing suit only until December 2009. Suit was filed in May 2011, outside the period. Section 90 of the Employment Act 2007 cannot apply retrospectively to revive the claim.
Whether the Claimant's resignation from the 2nd Respondent constituted constructive and unfair dismissal
Yes; the realignment of duties created a parallel centre of management undermining the Claimant, constituting a repudiatory breach; no cause was demonstrated and the Claimant was unfairly terminated
The 2nd Respondent's letter assigning a colleague overlapping control of key functions undermined the Claimant's managerial position. The employee is entitled to treat such employer conduct as repudiatory breach and resign. No cause for dismissal was demonstrated; the Claimant gave one month's notice. The court awarded 12 months' compensation of Kshs. 162,000/-, considering the conduct of the Respondents regarding the unpaid dues.
The counterclaim for Kshs. 69,000/- notice pay
Dismissed with costs as no evidence was led to prove it
The Respondents did not call any witness or produce documentary proof in support of their defence or counterclaim after the Claimant testified. The counterclaim therefore failed entirely and the Claimant was awarded costs on it.
Joinder of the 3rd Respondent
Misplaced; he was not properly joined since the claim against the 1st Respondent was incompetent
The 3rd Respondent traded in the name of the 1st Respondent and could only properly have been joined had the cause of action against the 1st Respondent been competent. As that claim was time barred, the joinder failed.
Legal principles established
#- Under the repealed Employment Act Cap 229 there was no express limitation provision and the Limitation of Actions Act's 6-year period for contract claims applied
- Section 90 of the Employment Act 2007 is not retrospective and does not apply to causes of action accruing before its commencement
- Resignation in response to an employer's repudiatory breach amounts to constructive dismissal
Court orders
#- 1.The claim against the 1st and 3rd Respondents for dues accrued in 2003 is dismissed as time barred
- 2.Judgment entered for the Claimant against the 2nd Respondent for Kshs. 162,000/- being 12 months' compensation for unfair/constructive dismissal
- 3.The Claimant's resignation was a constructive dismissal and unfair termination
- 4.The counterclaim is dismissed with costs to the Claimant
- 5.No order as to costs on the Kshs. 162,000/- award; Claimant entitled to costs on the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under the Industrial Court (Procedure) Rules 2010 over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sewira Fundi Maina v Inland Services Company Limited & 2 others [2015] KEELRC 655 (KLR)", Case Analysis (2015). Industrial Court Cause (Nairobi), suit filed 9th May 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/655/eng@2015-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.