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ELRCStruck OutNot stated in the extract· [2016] KEELRC 368 (KLR)

Jeremiah Njue Joel v Ngagaka Water and Sanitation Company Limited & another [2016] KEELRC 368 (KLR)

Employment and Labour Relations Court
11 November 2016
BOByram Ongaya
657 words in judgment
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The bottom line

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An employment claim filed more than three years after dismissal was thrown out in Kenya, and a later complaint to the ombudsman could not revive it.

What this practically means

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Executive summary

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The claimant, employed as Technical Manager by the 1st respondent on 05.10.2005, pleaded that on or about 01.04.2011 he was handed a letter dated 31.03.2011 showing he had been replaced, and that he was not paid terminal dues. He complained to the Attorney General on 24.07.2013 and to the Commission on Administrative Justice on 26.05.2015 without administrative resolution, then filed a memorandum of claim on 28.06.2016 alleging unfair, unlawful and unconstitutional termination and seeking terminal dues, compensation, costs and interest. The 1st respondent filed a response asserting the claim was time barred under section 90 of the Employment Act, 2007 and raised a preliminary objection; the 2nd respondent also sought dismissal. On the objection, the claimant argued, citing Rawal v Rawal, that limitation law protects defendants from stale claims rather than extinguishing claims, and that the Commission complaint amounted to ADR stopping time. The 1st respondent relied on the Court of Appeal decision in Attorney General v Andrew Maina Githinji on the mandatory terms of section 90. The court found no dispute that termination was on or about 01.04.2011 and that limitation lapsed on or about 01.04.2014. It held the Commission complaint came after lapse of time and could not revive lapsed limitation, and that the suit filed on 28.06.2016 was time barred. The preliminary objection was upheld and the suit dismissed with costs. Judgment delivered at Nyeri on 11th November 2016 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the complaint to the Commission on Administrative Justice stopped the running of limitation time

Holding

The court doubted it amounted to ADR and held that in any event it could not revive already lapsed limitation time

Reasoning

The complaint was made on 26.05.2015, more than a year after the three-year limitation period expired on 01.04.2014. The court found the Commission complaint did not initiate an ADR mechanism, and even if it did, an ADR process begun after limitation has run out cannot resurrect the claim.

p. 3
02

Whether the suit was time barred under section 90 of the Employment Act, 2007

Holding

Yes; the suit filed on 28.06.2016 was well beyond the three-year period from termination on or about 01.04.2011

Reasoning

Section 90 prescribes a three-year limitation period for employment claims. There was no dispute that termination took effect on or about 01.04.2011, so limitation lapsed on or about 01.04.2014. The memorandum of claim was filed on 28.06.2016, outside the period, and the preliminary objection succeeded.

p. 3

Legal principles established

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  • Initiation of an alternative dispute resolution process after limitation has lapsed cannot revive lapsed limitation time under section 90 of the Employment Act
  • A suit filed after the three-year limitation period prescribed by section 90 of the Employment Act, 2007 is time barred and liable to dismissal

Court orders

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  1. 1.The preliminary objection urged for the 1st respondent is upheld
  2. 2.The claimant's suit filed on 28.06.2016 by the statement of claim dated 28.06.2016 is dismissed with costs

Authorities

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Legislation

  • Employment Act, 2007section 90

Cases cited (2)

  • Rawal-Versus-Rawal (1990)KLR
    (1990) KLR
  • Attorney General and Another –Versus- Andrew Maina Githinji and Another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 on limitation invoked)

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, "Jeremiah Njue Joel v Ngagaka Water and Sanitation Company Limited & another [2016] KEELRC 368 (KLR)", Case Analysis (2016). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/368/eng@2016-11-11

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