Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherIndustrial Cause (number not stated in judgment)· [2015] KEELRC 842 (KLR)

William Mogeni Momanyi v Aga Khan University Hospital [2015] KEELRC 842 (KLR)

Industrial Court of Kenya
10 June 2015
MMM. Mbaru
1,702 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that the three-year clock for unfair termination claims only starts once an internal appeal is decided, not on the dismissal date.

What this practically means

#

Executive summary

#
The respondent, Aga Khan University Hospital, raised a preliminary objection dated 11th May 2015 contending that the claimant's suit for wrongful and unfair termination was statute-barred under section 90 of the Employment Act, the termination having occurred on 11th May 2010 while the memorandum of claim was filed on 31st October 2013. The respondent relied on Fred Mudave Gogo v G4S Security Services and argued that limitation is a substantive ground of law. The claimant countered that an internal appeal under the applicable policy/collective agreement kept the matter alive, and that time could not run until the appeal was rejected on 30th September 2011, citing David Otunga Kenani. The court accepted that limitation goes to jurisdiction, citing Owners of Motor Vessel 'Lillian S', and that section 90 imposes a mandatory three-year period ousting section 4(1) of the Limitation of Actions Act. It held that where an employer's policy, regulations or internal mechanisms allow an appeal, such mechanisms form part of the contract of employment under section 26 of the Employment Act, and an employee must await the outcome of the appeal before time runs. Since the claimant's appeal was rejected on 30th September 2011, time ran from that date, making the claim filed on 31st October 2013 - roughly two years and two months later - well within time. The court also noted that where conciliation under section 62 of the Labour Relations Act is invoked, time runs from the report to the Minister and the conciliator's certificate, and that reliance on such processes should be pleaded in the memorandum of claim. The preliminary objections were dismissed with costs in the cause.

Key legal issues

#
01

Effect of internal appeal mechanisms on the limitation period under section 90 of the Employment Act

Holding

The existence of an appeal policy under a collective agreement or employer policy forms part of the contract of employment; time does not begin to run until the internal appeal is determined and the employee exhausts internal remedies

Reasoning

Section 26 of the Employment Act makes more favourable contractual or collective-agreement terms part of the employment relationship. Administrative processes include time for appeal and review, and an employee must await the outcome. The court held the claimant exhausted available remedies when his appeal was rejected on 30th September 2011, and that this is when the cause of action arose for limitation purposes.

p. 3
02

Mandatory nature of the three-year limitation period under section 90 of the Employment Act

Holding

Section 90 is mandatory and ousts section 4(1) of the Limitation of Actions Act; no employment claim lies outside three years of the act complained of

Reasoning

The court read section 90 as a deliberate legislative effort to remove any doubt on limitation for Employment Act claims, ousting the general six-year period under the Limitation of Actions Act. It also noted that reference to conciliation under section 62 of the Labour Relations Act can affect time, but time resumes upon issue of the conciliator's certificate.

p. 2
03

Whether the claim was filed within time

Holding

The claim filed on 31st October 2013 was within three years of the cause of action accruing on 30th September 2011

Reasoning

Computing time from the rejection of the internal appeal, the memorandum of claim was filed some 2 years and 2 months later, well within the statutory period. The preliminary objection therefore failed.

p. 3

Legal principles established

#
  • Limitation of actions goes to jurisdiction and must be addressed before anything else when raised
  • Section 90 of the Employment Act ousts section 4(1) of the Limitation of Actions Act and imposes a mandatory three-year limitation period for employment claims
  • Where an employer's policy or internal mechanisms allow an appeal, time does not run against an employee until the outcome of that appeal is communicated

Court orders

#
  1. 1.The preliminary objections dated 11th May 2015 are dismissed
  2. 2.Costs shall be in the cause

Authorities

#

Legislation

  • Employment Actsection 90
  • Employment Actsection 26
  • Limitation of Actions Actsection 4(1)
  • Labour Relations Actsection 62
  • Industrial Court (Procedure) RulesRule 4, especially Rule 4(e)

Cases cited (4)

  • Fred Mudave Gogo versus G4S Security Services (K) Ltd
    [2014] eKLR
  • Kenya Scientific Research international and Allied Workers union versus T.N.S. Research International
    Industrial Cause No. 27 of 2010
  • David Otunga Kenani versus Office of the Controller and Auditor General & Another
    [2015] eKLR
  • Owners of Motor Vessel 'Lillian S' versus Caltex Oil (Kenya) Limited
    [1989] KLR 1
Jurisdiction invoked
Section 90 of the Employment Act; jurisdiction of the Industrial Court over employment disputes

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "William Mogeni Momanyi v Aga Khan University Hospital [2015] KEELRC 842 (KLR)", Case Analysis (2015). Industrial Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/842/eng@2015-06-10

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