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ELRCStruck OutNot stated in extract (Industrial Court cause, Mombasa)· [2015] KEELRC 882 (KLR)

Noel Njeghe Mwalamba v Louis Dreyfus Kenya Ltd [2015] KEELRC 882 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
19 June 2015
JRJames Rika
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee who waited until after his criminal acquittal to sue over dismissal lost because employment claims expire three years from dismissal.

What this practically means

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Executive summary

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The Claimant, employed as an Operations Officer on 23rd March 2004, was summarily dismissed on 21st November 2008 after being arrested on suspicion of attempted theft from the Respondent. He was charged in Mombasa Chief Magistrate's Court Criminal Case No. 3396 of 2008 and acquitted on 30th May 2013 after about five years of trial. He filed this claim on 23rd June 2014, seeking notice pay, unpaid salary, salary for the duration of the criminal case, 24 months' special damages for wrongful termination, loss of earnings to retirement age, damages for malicious prosecution and exemplary damages, together with a declaration of unfair dismissal, a certificate of service, interest and costs. The Respondent filed a Notice of Preliminary Objection asserting the claim was time-barred under Section 90 of the Employment Act 2007, and counter-claimed Kshs. 1,741,680.63 as an outstanding loan. Parties agreed the objection be determined on written submissions. The court, per James Rika, Judge, held that Section 90 is a jurisdictional law consistent with a catena of Industrial Court authorities and the Court of Appeal's Divecon v Samani jurisdiction theory. The cause of action arose on the date of dismissal, not the date of acquittal: the disciplinary process is private and not subject to the criminal process, acquittal does not absolve the employee of the employment offence, and the processes could only be joined had the employer expressly linked the employee's fate to the criminal outcome, which it did not. Both the claim and the counter-claim were struck out as time-barred, with no order as to costs.

Key legal issues

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01

When does the cause of action accrue for limitation purposes where summary dismissal precedes a criminal trial?

Holding

The cause of action arose on the date of summary dismissal (21st November 2008), not on the date of acquittal (30th May 2013); the claim filed 23rd June 2014 was beyond the 3-year limit.

Reasoning

The court held that the disciplinary and criminal processes are separate: the disciplinary process is private, undertaken by the employer to protect its own interest, while the criminal process is public. The standards of proof differ, and acquittal in the criminal court does not absolve the employee of the employment offence. The Claimant's contract under Clause 20 allowed summary dismissal for gross misconduct without reference to a criminal trial, and the dismissal letter followed internal investigations.

p. 3
02

Is Section 90 of the Employment Act a jurisdictional bar?

Holding

Yes; it is a jurisdictional law, following the Divecon v Samani jurisdiction theory, so expiry of time extinguishes both cause and remedy.

Reasoning

The court catalogued numerous Industrial Court decisions adopting the position that Section 90 is jurisdictional, anchored in the Court of Appeal's Divecon v Samani doctrine. The decisions cited by the Respondent (Sila Mauga, Francis Somoni Kamesh, Elinathan Kitiro Mwamburi) and others (Mutinda Antony Nzioka, Irene Yambo, Joseph Kimele, Benjamin Wachira Ndithi) propound that expiry of time bars the cause and the remedy.

p. 3

Legal principles established

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  • Section 90 of the Employment Act 2007 is a jurisdictional law whose expiry of time limits bars both the cause and the remedy
  • The workplace disciplinary process is not subject to the criminal process, and an employee's acquittal does not bar an employer's finding of guilt on the employment offence
  • The disciplinary process is only joined to the criminal process where the employer has expressly communicated that the employee's fate depends on the criminal case outcome

Court orders

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  1. 1.The Claim and the Counter-Claim are both time-barred and struck out.
  2. 2.No order on the costs.
Jurisdiction invoked
Employment Act 2007, Section 90 (jurisdictional limitation provision)

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, "Noel Njeghe Mwalamba v Louis Dreyfus Kenya Ltd [2015] KEELRC 882 (KLR)", Case Analysis (2015). Not stated in extract (Industrial Court cause, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/882/eng@2015-06-19

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