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ELRCOtherNot stated in the judgment (filed 22nd December 2015)· [2016] KEELRC 446 (KLR)

Paul Dedan Ochieng & 2 others v Harambee Co-operative Savings & Credit Society [2016] KEELRC 446 (KLR)

Employment and Labour Relations Court
22 March 2016
JRJames Rika
446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed workers to file late claims because no one could prove when their termination actually took effect.

What this practically means

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Executive summary

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Three Applicants applied, in a Miscellaneous Application improperly registered as a Cause, for leave to file a Claim against their former Employer out of time, relying on Sections 26 and 28 of the Limitation of Actions Act. They alleged they were employed between 1988 and 2005 in Nairobi and Mombasa; that during criminal proceedings for theft by servant in Mombasa Chief Magistrate's Court Criminal Case Number 3629 of 2009, in which they were convicted and sentenced but released on appeal by the High Court Mombasa, they reported to work but were locked out; that they received no show-cause or termination letters; and that after their successful appeal their Advocates' request to return to work went unanswered. Anticipating that their claims for unfair termination compensation and terminal dues were time-barred under Section 90 of the Employment Act 2007, they sought extension of time. The Court held that it could not determine when the cause of action accrued: absent a termination letter or communication with a clear date of termination, accrual could not be presumed, and the apprehension of limitation was unfounded. The Court declined to grant a formal extension of time but ordered that the Applicants were at liberty to file their Claims, with the Intended Respondent free to raise a Section 90 objection if evidence of the termination date later emerged. The judgment was delivered at Mombasa on 22nd March 2016 by James Rika, Judge.

Key legal issues

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01

Extension of time under the Limitation of Actions Act in an employment claim

Holding

The application for extension of time failed because the Applicants could not show when their cause of action accrued; the apprehension of being time-barred was unfounded absent a date of termination

Reasoning

Section 90 of the Employment Act places a 3-year ceiling on filing Claims from accrual. The Applicants alleged they were locked out and never issued termination letters, so the date the Employer made the termination decision is unknown. Without evidence of when time started running and when it ran out, the Court could not grant the extension sought.

p. 2
02

Procedure: mischaracterisation of parties and registration of the application

Holding

The Application was improperly registered as a 'Cause'; it is a Miscellaneous Application, and the parties are Applicants and Intended Respondent, not Claimants and Respondent

Reasoning

No Claim had yet been filed, so the Applicants could not be 'Claimants' and the former Employer could only be an 'Intended Respondent'. The Court nonetheless proceeded to determine the application on its merits and granted liberty to file the Claims.

p. 2

Legal principles established

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  • A court cannot extend the limitation period without evidence establishing the date when the cause of action accrued and when time ran out
  • Where no termination letter or communication with a clear date of termination exists, the date of accrual of the cause of action cannot be presumed

Court orders

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  1. 1.The Applicants are at liberty to file their Claims
  2. 2.The Intended Respondent shall be free to raise objection to the Intended Claims under Section 90 of the Employment Act, should there be evidence on the date of termination which at this point is undisclosed

Authorities

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Legislation

  • Employment Act 2007Section 90
  • Limitation of Actions ActSections 26 and 28
Jurisdiction invoked
Sections 26 and 28 of the Limitation of Actions Act (cited by Applicants as enabling extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Paul Dedan Ochieng & 2 others v Harambee Co-operative Savings & Credit Society [2016] KEELRC 446 (KLR)", Case Analysis (2016). Not stated in the judgment (filed 22nd December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/446/eng@2016-03-22

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