Ali Mwanzia Kelly A.K.A. Robinson Mwanzia Kelly v Mohamed Swaleh [2015] KEELRC 883 (KLR)

Industrial Court of Kenya

19 June 2015

JRJames Rika

617 words in judgment

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The bottom line

A Kenyan employment claim filed nearly six years late was dismissed because the Employment Act gives only three years to sue.

What this practically means

Executive summary

The claimant, a long-distance truck driver, sued his former employer seeking service pay, salary for eleven days worked in November 2008, annual leave pay, one month's pay in lieu of notice, twelve months' salary as compensation for unfair termination, medical expenses of Kshs. 694,062.85 arising from a traffic accident near Kibwezi, a certificate of service and costs. He averred that the respondent terminated his contract without notice or reasons after the accident, failed to pay his hospitalization costs, and never registered him with NSSF or NHIF. The respondent was duly served with summons, the Statement of Claim and hearing notice but neither filed a response nor attended court; the claim proceeded undefended and was heard on 12th March 2015. In submissions, the claimant relied on Sections 35, 36, 41, 45 and 34 of the Employment Act 2007. The court, however, found the claim time-barred: employment ended in November 2008 yet the Statement of Claim was filed on 16th September 2014, nearly six years later, well outside the three-year limitation period in Section 90 of the Employment Act 2007. The claimant offered no explanation for the delay, and his reliance on the Work Injury Benefits Act 2007 and the Labour Institutions Act 2007 did not demonstrate any validating effect on a late Employment Act claim. The claim was accordingly dismissed as time-barred with no order as to costs.

Key legal issues

Limitation of actions in employment claims

Holding

The claim, filed almost six years after termination in November 2008, was time-barred under Section 90 of the Employment Act 2007, which allows three years.

Reasoning

The claimant left employment in November 2008 after a road accident but only filed the Statement of Claim on 16th September 2014. Section 90 of the Employment Act 2007 provides a three-year limitation period. The claimant gave no explanation for the delay, and his citation of the Work Injury Benefits Act 2007 and the Labour Institutions Act 2007 did not show how those statutes could validate a claim filed late under the Employment Act. The court therefore could not grant relief and dismissed the claim.

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Legal principles established

A claim under the Employment Act 2007 must be filed within the 3-year period prescribed by Section 90, and reliance on the Work Injury Benefits Act 2007 or Labour Institutions Act 2007 does not validate a late-filed Employment Act claim

Court orders

1.The Claim is time-barred and is hereby dismissed with no order on the costs

Authorities

Legislation

Employment Act 2007Sections 34, 35(1)(c), 35(5), 36, 41, 45, 90
Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
Work Injury Benefits Act 2007
Labour Institutions Act 2007

Jurisdiction invoked: Employment and labour relations jurisdiction; Award under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ali Mwanzia Kelly A.K.A. Robinson Mwanzia Kelly v Mohamed Swaleh [2015] KEELRC 883 (KLR)", Case Analysis (2015). Cause Number 449 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/883/eng@2015-06-19

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