Silvester Ndenga Oniang’o v Cables and Plastics & another [2015] KEELRC 899 (KLR)
The bottom line
#A Kenyan court ruled a winding-up company still owed its former worker Kshs. 497,772 in terminal benefits, despite the claim being filed years later.
What this practically means
#Executive summary
#Key legal issues
#Limitation and applicable law
The Claim is not time-barred; the Employment Act 2007 and the Limitation of Actions Act do not apply to a 2005 termination dispute, which is governed by the repealed Trade Disputes Act regime
Section 90 of the Employment Act 2007 caps claims at 3 years, but the Act came into force in June 2008 and cannot apply to a cause of action arising in 2005. The applicable substantive law is the repealed Employment Act Cap 226, Regulation of Wages Act Cap 229, and for termination, the Trade Disputes Act Cap 234. The dispute was reported to the Minister on 23rd October 2006 and accepted, and the court process was a continuation of that statutory process, so limitation has no effect.
Insolvency of the employer
The winding up of the 1st Respondent does not defeat the Claim; Part 8 of the Employment Act 2007 does not apply to a 2005 dispute and does not remove pending employment claims from the Labour Court
The preliminary objection based on insolvency was never argued. Part 8 of the Employment Act 2007 is a social security mechanism for recovery of employee debts from insolvent employers via the Minister, and does not apply to a pre-2008 dispute. The Official Receiver was joined but did not respond energetically; the Court must proceed to determine what obligations are owed to the employees despite the dissolution.
Terminal benefits
The claim for terminal benefits as particularized is well-founded, the Claimant's unchallenged evidence and the conciliation record supporting an award of Kshs. 497,772.91
The evidence of the Claimant and his witness went unchallenged as the Respondents adduced no evidence. A CBA grounded on statutory minimum terms was in place, and the extensive material from over six years of investigation and conciliation before the Ministry of Labour crystallised the grievances and assisted the Court in concluding the claim for terminal benefits is well-founded. However, the unfair termination evidence was misplaced since no such remedy was sought.
Legal principles established
#- The Employment Act 2007 does not apply retroactively to causes of action arising before its commencement in June 2008
- Termination claims arising before 26th October 2007 are governed by the repealed Trade Disputes Act per Schedule 5 of the Labour Relations Act
- Once the Minister accepts a dispute under the Trade Disputes Act, limitation statutes do not bar the subsequent adjudication before the Labour Court, the court process being a continuation of the statutory dispute resolution
- An employer's winding up or dissolution does not defeat employees' claims; their obligations must still be determined by the Court
Court orders
#- 1.The Court allows the claims for notice pay; annual leave; pro-rata leave; gratuity; overtime; and underpayments at Kshs. 497,772.91
- 2.The Claimant is awarded the costs of the Claim
- 3.Interest on the award calculated from the date of delivery of the Award
- Jurisdiction invoked
- Industrial Court jurisdiction under the Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); dispute originally reported under the Trade Disputes Act Cap 234
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvester Ndenga Oniang’o v Cables and Plastics & another [2015] KEELRC 899 (KLR)", Case Analysis (2015). Cause Number 131 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/899/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.