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ELRCPartially AllowedCause No. 297 B of 2014 (Consolidated with Causes Nos. 283, 298, 299, 300, 301, 302 and 303 of 2014)· [2016] KEELRC 488 (KLR)

Humphrey Omengeh & 7 others v Chemelil Outgrowers Co Limited [2016] KEELRC 488 (KLR)

Employment and Labour Relations Court of Kenya
29 September 2016
MOMaureen Onyango
2,135 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Eight consolidated employment causes were heard together before Lady Justice Maureen Onyango of the Employment and Labour Relations Court at Kisumu. Seven claimants were terminated on 13th July 2009 (the 1st Claimant in September 2008) and received partial payments on 14th May 2010 following labour office conciliation. The court framed four issues: limitation, whether the claimants were casual employees, whether termination was unfair or redundant, and entitlement to reliefs. The claimants' counsel did not address the limitation plea raised in the defence and submissions. Applying section 90 of the Employment Act, which the court held to be mandatory, and relying on Radido J.'s decision in Peter Nyamai & 7 others v M.J. Clarke Limited (and through it the Court of Appeal decision in Divecon v Samani), the court found that limitation extinguishes the right and ousts jurisdiction. The claims of the 2nd to 8th Claimants, filed on 5th November 2014, more than three years after the payments of 14th May 2010 and without leave of the court, were struck out as time barred. Only the 1st Claimant, Humphrey Omengeh, whose claim was filed in Nairobi on 9th January 2012 and transferred to Kisumu, escaped limitation. The court found that a Labour Office tabulation fixed his dues at Shs.1,143,353 (balance Shs.1,022,919), but the Respondent unilaterally capped payment at three years' wages by an internal memo and paid only Shs.120,434.35. Judgment was entered for the 1st Claimant for Shs.902,484.65 with costs and interest at court rates.

Key legal issues

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01

Whether the claims are time barred under section 90 of the Employment Act

Holding

All claims except that of the 1st Claimant (filed in Nairobi on 9th January 2012) were filed more than three years after the payments made on 14th May 2010, without leave, and are time barred

Reasoning

Section 90 of the Employment Act is couched in mandatory terms and requires claims to be instituted within three years of the act, neglect or default complained of. The 2nd to 8th Claimants' services ended on 13th July 2009 and partial payments were made on 14th May 2010, so claims should have been filed by 14th May 2013. They were filed on 5th November 2014 without leave. Limitation extinguishes the right, depriving the court of jurisdiction. Following Radido J. in Peter Nyamai, the time limit is jurisdictional, not merely procedural.

p. 4
02

Whether the 1st Claimant is entitled to the full tabulated terminal dues

Holding

The 1st Claimant is entitled to Shs.1,022,919 as tabulated at the Labour Office, less Shs.120,434.35 already paid, leaving a balance of Shs.902,484.65

Reasoning

Both the 1st Claimant and RW1 confirmed the terminal benefits tabulation followed conciliation meetings at the Labour Office, showing 13 years of service at Shs.577 per day. The Respondent nonetheless paid only Shs.120,434.35, having internally capped payments at three years' pay by an Internal Memo dated 12th May 2010. The court found the Respondent unilaterally and without explanation paid less than the amount agreed at conciliation, and therefore entered judgment for the balance with costs and interest.

p. 5

Legal principles established

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  • The time limit for filing employment claims under section 90 of the Employment Act is a jurisdictional question, not merely procedural, and limitation extinguishes the right such that the court cannot entertain a time-barred claim
  • Where a party agrees to a tabulation of terminal dues through labour office conciliation but unilaterally pays a lesser amount without explanation, the employee is entitled to payment as per the agreed tabulation less amounts already received

Court orders

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  1. 1.The claims of the 2nd to 8th Claimants are struck out for being time barred
  2. 2.Judgment entered for the 1st Claimant against the Respondent for Shs.902,484.65
  3. 3.The 1st Claimant awarded costs of the suit
  4. 4.Interest on the 1st Claimant's award at court rates

Authorities

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Legislation

  • Employment ActSection 90 (Limitation)
  • Limitation of Actions ActSection 4(1)

Cases cited (2)

  • Peter Nyamai & 7 others v M.J. Clarke Limited
    [2013] eKLR
  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution (jurisdiction over employment and labour relations claims); claims brought under 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, "Humphrey Omengeh & 7 others v Chemelil Outgrowers Co Limited [2016] KEELRC 488 (KLR)", Case Analysis (2016). Cause No. 297 B of 2014 (Consolidated with Causes Nos. 283, 298, 299, 300, 301, 302 and 303 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/488/eng@2016-09-29

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