Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in extract (Industrial Court Cause, filed 22nd February 2016)· [2016] KEELRC 183 (KLR)

Peter Otieno Odhiambo & 4 others v Total Security Surveillance Limited [2016] KEELRC 183 (KLR)

Industrial Court (Employment and Labour Relations Court)
9 December 2016
JRJames Rika
646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that a labour claim can't be thrown out as time-barred unless the actual termination date is clearly established at a full hearing.

What this practically means

#

Executive summary

#
The Claimants, security guards employed by the Respondent, were arrested on 19th September 2011 and charged at the Respondent's instigation with theft or failure to prevent theft of copper cables at the workplace. They were acquitted on 29th April 2015. They alleged they were never allowed back to work, never given termination letters, and filed a claim on 22nd February 2016 seeking terminal dues and compensation for unfair (constructive) termination. The Respondent raised a preliminary objection under section 90 of the Employment Act 2007, contending the three-year limitation period expired before filing since the Claimants last worked on 19th September 2011, relying on Karanja v. Family Bank Limited for the proposition that time does not stop running because an employee faces criminal charges. The Claimants, relying on Ochieng' v. Harambee Cooperative Savings & Credit Society, argued that where there is no clear termination date, the accrual of the cause of action cannot be presumed. The Court noted an implied agreement that no termination letter was issued, that the date of arrest is not necessarily the date the cause of action arose, and that whether the Claimants were constructively dismissed, summarily dismissed, or deserted could only be established at a full hearing. Finding no specific, clear date of accrual, the Court held the preliminary objection misplaced and joined it to the substantive dispute, directing the parties to fix a hearing date, with costs in the cause. The judgment is interlocutory in effect: no final determination of the limitation question was made.

Key legal issues

#
01

Limitation under section 90 of the Employment Act where no termination letter issued

Holding

The preliminary objection was premature; the date of termination (and hence accrual of the cause of action) is a matter for full hearing

Reasoning

The Respondent denied terminating the Claimants' contracts, and no termination letter was issued. The Claimants pleaded constructive dismissal without a date. The Court could not tell at the preliminary stage whether the Claimants were locked out, deserted, or their continuity depended on the criminal case. The date when the cause of action arose would be the date of termination, which is not ascertainable, so limitation must be determined after hearing parties.

p. 2
02

Effect of criminal charge/acquittal on limitation

Holding

As argued by the Respondent's cited authority, time does not stop running because an employee has been charged with a criminal offence, but the Court held the accrual date itself was unascertainable

Reasoning

The Respondent relied on authority that a criminal charge does not suspend limitation. The Court did not decide that point; it found instead that the date of termination - constructive dismissal, summary dismissal or desertion - could not be adopted incontrovertibly at the preliminary stage, so the objection was joined to the substantive dispute.

p. 2

Legal principles established

#
  • Where there is no clear date of termination, the date the cause of action arises cannot be presumed and limitation cannot be determined at a preliminary stage

Court orders

#
  1. 1.The point of preliminary objection is joined to the substantive dispute
  2. 2.Parties to agree on a date for hearing of the full dispute
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Employment Actsection 90

Cases cited (2)

  • Stephen Kamau Karanja & Anor. v. Family Bank Limited
    Industrial Court Cause No. 399 of 2014
  • Paul Dedan Ochieng’ & 2 others v. Harambee Cooperative Savings & Credit Society
    Employment and Labour Relations Court Cause No. 949 of 2013
Jurisdiction invoked
Employment Act 2007, section 90 (limitation); Employment and Labour Relations Court original jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Otieno Odhiambo & 4 others v Total Security Surveillance Limited [2016] KEELRC 183 (KLR)", Case Analysis (2016). Not stated in extract (Industrial Court Cause, filed 22nd February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/183/eng@2016-12-09

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