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ELRCStruck OutMemorandum of Claim dated 23rd April 2014, filed 24th April 2014· [2015] KEELRC 945 (KLR)

George Hiram Ndirangu v Equity Bank Limited [2015] KEELRC 945 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 June 2015
LNLINNET NDOLO
1,393 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 four years to sue for unfair dismissal lost because a pending criminal case does not extend the three-year filing deadline.

What this practically means

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Executive summary

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The Claimant filed a Memorandum of Claim on 24th April 2014 seeking relief for unfair termination of employment. The Respondent raised a preliminary objection on limitation of time, arguing that the cause of action arose on 6th April 2010 and that the suit contravened Section 90 of the Employment Act, 2007. The Claimant countered that his acquittal in Criminal Case No 551 of 2010 on 25th May 2013 constituted a continuing injury, giving him twelve months to sue, and alternatively relied on Section 4 of the Limitation of Actions Act. The Court, per Linnet Ndolo J, rejected the claimant's construction of 'continuing injury or damage', holding that a criminal trial and workplace disciplinary proceedings are distinct processes with different procedural and proof requirements. Continuing injury was interpreted as violations of employment contract rights such as underpayment or unpaid accrued dues, not the pendency of criminal proceedings. Section 4(4) of the Limitation of Actions Act was held inapplicable since the claim was not enforcement of a judgment. The cause of action was found to have accrued on 1st April 2010, the date of summary dismissal, so the claim should have been filed by 31st March 2013. The claim filed on 24th April 2014 was time-barred, depriving the Court of jurisdiction. The claim was struck out with no order for costs.

Key legal issues

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01

Whether pendency of criminal proceedings constitutes a continuing injury under Section 90 of the Employment Act

Holding

It does not; the limitation period runs from the date of dismissal, not from the outcome of criminal proceedings

Reasoning

The Court held that criminal trials and workplace disciplinary processes are distinct, with different procedural and proof standards. An employer may rely on a criminal trial's outcome, but the pendency of criminal proceedings does not suspend the employee's obligation to file an employment claim within the limitation period. The phrase 'continuing injury or damage' must be read within the Court's jurisdiction, i.e. employment-related violations such as accrued dues.

p. 2
02

Applicability of Section 4(4) of the Limitation of Actions Act

Holding

Inapplicable; that provision deals with enforcement of judgments and the criminal case ruling is not a judgment being enforced in this employment dispute

Reasoning

Section 4(4) of the Limitation of Actions Act governs actions upon judgments after 12 years. Since the Court found the criminal trial and the employment dispute to be distinct legal processes, the Claimant could not characterise his unfair termination claim as enforcement of the criminal case ruling.

p. 3
03

When the cause of action accrued

Holding

On the date of summary dismissal, 1st April 2010; the claim filed on 24th April 2014 was out of time and the Court lacked jurisdiction

Reasoning

Section 90 requires employment claims to be filed within three years of the act complained of. The dismissal took effect on 1st April 2010, so the claim ought to have been filed by 31st March 2013. Filing on 24th April 2014 was time-barred, ousting the Court's jurisdiction.

p. 3

Legal principles established

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  • A criminal trial and internal disciplinary proceedings at the workplace are distinct processes; an acquittal does not by itself render an employer's disciplinary decision wrongful or unfair
  • 'Continuing injury or damage' under Section 90 of the Employment Act connotes violation of rights under an employment contract such as salary underpayment or failure to pay accrued dues, not pendency of criminal proceedings

Court orders

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  1. 1.The Claimant's claim is struck out with no order for costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 49
  • Limitation of Actions ActSection 4
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 4(4)
  • Industrial Court ActSection 12

Cases cited (5)

  • Andrew Maina Githinji & another v Attorney General and another
    [2015] eKLR
  • Margaret Auma Ingwe v Kenya Power and Lighting Co. Ltd
    [2015] eKLR
  • Republic v Public Service Commission of Kenya Ex Parte James Nene Gachoka
    [2013] eKLR
  • Kibe v Attorney General (Civil Appeal No 164 of 2000)
  • Kimatu Igecha v SBI International Holdings AG Kenya
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Industrial Court Act; Section 90 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Hiram Ndirangu v Equity Bank Limited [2015] KEELRC 945 (KLR)", Case Analysis (2015). Memorandum of Claim dated 23rd April 2014, filed 24th April 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/945/eng@2015-06-17

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