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ELRCStruck OutCause Number 109 of 2013· [2015] KEELRC 1330 (KLR)

Michael Wanderi Kariuki v Brookside Dairy Limited [2015] KEELRC 1330 (KLR)

Industrial Court of Kenya
13 March 2015
JRJames Rika
720 words in judgment
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The bottom line

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Kenya's Employment Act gives you only 3 years to sue over a dismissal — this worker waited 5 years and lost everything.

What this practically means

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Executive summary

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The Claimant, a former Salesman of Brookside Dairy Limited, sued for 1 month's salary in lieu of notice, salary for June 2008, pro-rata leave, an alleged unlawful salary deduction, gratuity for 7 years, damages for unfair and wrongful termination, a certificate of service and recommendation letter (or reinstatement), overtime, leave and house allowances, and damages for unlawful confinement and defamation. The Respondent admitted summarily dismissing him for gross misconduct after he failed to account for Kshs. 373,227 in sales and was bonded to answer a theft-by-servant charge; it asked for total dismissal or, alternatively, payment of leave days and July 2008 salary totalling Kshs. 12,787 net. The Court, per Rika J, found the dismissal effective from 5th July 2008 while the Claim was only filed on 13th May 2013 - about 5 years later. Applying Section 90 of the Employment Act 2007, which imposes a 3-year time limit, the Court held the Claim statute-barred as submitted by the Respondent. The Claimant gave no explanation for the delay and had taken no steps to validate the claim; the Court regretted the point had not been raised at the outset in the interest of judicial economy. Holding itself deprived of temporal jurisdiction, the Court declined to evaluate the merits or to award even the sums offered by the Respondent, while noting the parties remained free to negotiate on the offers made in the proceedings. The Claim was struck out with no order as to costs, on 13th March 2015 at Mombasa.

Key legal issues

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01

Limitation of actions - whether the claim filed about 5 years after dismissal was time-barred

Holding

The Claim was statute-barred under Section 90 of the Employment Act 2007, which places a 3-year time limit on filing such claims

Reasoning

The Claimant was summarily dismissed by letter dated 15th July 2008, effective 5th July 2008, but filed the Claim on 13th May 2013, about 5 years later. The Respondent raised limitation in its Final Submissions. The facts were uncontested, and the Claimant offered no explanation for the delay in his evidence, pleadings or submissions, and took no steps to validate the claim.

p. 2
02

Whether the Court could nonetheless award the sums offered by the Respondent

Holding

No; lacking temporal jurisdiction the Court could not evaluate the merits, though parties were free to negotiate further

Reasoning

Because the claim was not validly before the Court, the Court's jurisdiction was ouster-limited on temporal grounds and it could not assess entitlement to any of the reliefs, including the Respondent's offer of leave days and July 2008 salary. The Court observed the parties could pursue the offers through negotiation outside the Court.

p. 2

Legal principles established

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  • Employment claims governed by Section 90 of the Employment Act 2007 must be filed within 3 years of the cause of action; claims filed outside that period are statute-barred and the court lacks jurisdiction to assess their merits
  • A court deprived of temporal jurisdiction cannot evaluate the merits of a claim, even if the respondent has offered part payment

Court orders

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  1. 1.A declaration that the Claim was filed outside the statutory time limit under Section 90 of the Employment Act 2007 and is not validly in Court
  2. 2.The Claim struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Act 2007Section 90
  • Industrial Court Procedure Rules 2010Rule 27(1)(a)
Jurisdiction invoked
Industrial Court jurisdiction under the Employment Act 2007; claim held time-barred under 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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Cite this brief

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Cite this brief

Caselaw, "Michael Wanderi Kariuki v Brookside Dairy Limited [2015] KEELRC 1330 (KLR)", Case Analysis (2015). Cause Number 109 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1330/eng@2015-03-13

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