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ELRCOtherCause No 11 of 2013· [2015] KEELRC 1507 (KLR)

Adow Mohamed Kanyare v Attorney General (Sued for and on behalf of the Permanent Secretary) Ministry of Education & another [2015] KEELRC 1507 (KLR)

Industrial Court (Employment and Labour Relations Court)
21 January 2015
ANAbuodha J. N.
889 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a former employee's terminal dues claim, filed eight years after retirement, was not time-barred because the employer's acknowledgments restarted the limitation clock.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 17th November 2014 seeking dismissal of the Claimant's claim on the ground that it was time barred under section 3(2) of the Public Authority Limitation Act (Cap 29) and section 90 of the Employment Act. The Respondent contended that the cause of action accrued on 18th January 2004 when the Claimant was retired, yet the suit was filed on 6th January 2013, depriving the court of jurisdiction. The Claimant opposed, arguing that the Respondent had repeatedly acknowledged indebtedness, the last admission being on 5th April 2012, so time ran from acknowledgment. The court, through Abuodha J, applied the principle that where the exact point of accrual is unclear, limitation should not be invoked to shut out a claimant, and adopted the Halford v. Brookes knowledge test - that knowledge means knowing with sufficient confidence to justify embarking on the preliminaries to a writ. Given the continuous official correspondence, including the District Education Officer's letter of 24th February 2011 and the letter of demand of 28th March 2012, the court held the cause of action accrued no earlier than March 2012. Relying on Bush v. Stevens and Ali El Busaidy v. Kenya Commercial Bank, it held that the Respondent's acknowledgments notionally renewed the cause of action. The preliminary objection was disallowed and the suit ordered to proceed to trial on merit. No costs order was made.

Key legal issues

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01

When the cause of action accrued for limitation purposes

Holding

The cause of action accrued when it became clear the Respondent would not settle the claim, not on retirement in January 2004

Reasoning

The court reviewed the claim and correspondence and held that terminal dues remained a live issue, subject to repeated correspondence by the Respondent's agents urging resolution, so it could not be said with exactness that the Claimant had earlier sufficient knowledge to seek other means of resolution before March 2012.

p. 1
02

Effect of acknowledgment of indebtedness on limitation

Holding

The Respondent's acknowledgments, the last on 5th April 2012, notionally renewed the cause of action

Reasoning

Relying on Bush v. Stevens and Ali El Busaidy v. Kenya Commercial Bank, the court held that an acknowledgment gives the right a 'notional birthday', so time runs afresh from the acknowledgment. The Respondent's continuous concern over payment renewed the cause of action, defeating the objection that the suit was time barred.

Legal principles established

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  • Where the exact point of accrual of a cause of action is unclear, the court should be circumspect in invoking limitation and determine when the claimant had sufficient knowledge of accrual
  • An acknowledgment or part-payment by the defendant notionally renews the cause of action for limitation purposes
  • Knowledge for limitation purposes means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ

Court orders

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  1. 1.The preliminary objection is disallowed
  2. 2.The suit shall proceed to trial on merit

Authorities

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Legislation

  • Public Authority Limitation Act (Cap 29)section 3(2)
  • Employment Actsection 90
  • Limitation of Actions Actsection 23(3)

Cases cited (4)

  • John Githiga Gachungwa & 3 Others v. Commissioner for Co-operatives & 2 Others
    HCC No. 59 of 2009 (Nyeri)
  • Halford v. Brookes
    (1991) 1 WLR
  • Bush v. Stevens
    (1963) 1 QB 1
  • Ali El Busaidy v. Kenya Commercial Bank
    (2010) eKLR
Jurisdiction invoked
Jurisdiction as the competent labour court; contested on the ground that the claim is time barred under section 3(2) of the Public Authority Limitation Act (Cap 29) and section 90 of the Employment Act

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, "Adow Mohamed Kanyare v Attorney General (Sued for and on behalf of the Permanent Secretary) Ministry of Education & another [2015] KEELRC 1507 (KLR)", Case Analysis (2015). Cause No 11 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1507/eng@2015-01-21

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