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ELRCDismissedCause No 1 of 2014· [2016] KEELRC 578 (KLR)

Peter Maina Mwaniki v PCEA Silanga High School & another [2016] KEELRC 578 (KLR)

Employment and Labour Relations Court (Industrial Court)
29 July 2016
NMNzioki wa MakauLNLinnet Ndolo
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a Kshs. 877,500 salary claim because the worker waited too long — over three years — to sue.

What this practically means

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Executive summary

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The Claimant sued on 3rd January 2014 seeking Kshs. 877,500/- being salary arrears, house allowance, annual increment and travelling allowance allegedly due under a written agreement of 3rd December 2006 by which he said the Respondents employed him as deputy head teacher at Kshs. 20,000/- monthly salary, plus costs, interest and exemplary damages. The Respondents denied executing the agreement, asserting the school did not exist at that date, that the Claimant was a volunteer teacher entitled only to a stipend, that the employment letter was a forgery, and that the Board of Governors, which was not sued, ran the school. Interlocutory judgment initially entered was set aside and the case heard afresh. The Claimant and a witness testified; the Respondents called three witnesses, including a founding trustee who reported the alleged forged letters to the police. The Respondents argued the suit was barred by Section 90 of the Employment Act, relying on E. Torgbhor and Fred Mudave Gogo. The court held that limitation had to be addressed first: the cause of action accrued circa February 2010 (termination 24th January 2011), so the suit filed on 3rd January 2014 was out of time. In the alternative, the court found the Claimant had failed to prove the employment terms or the specific sums claimed on a balance of probability and found him not credible. The suit was dismissed with costs to the Respondents.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The claim was filed outside the three-year limitation period and was time barred

Reasoning

Section 90 requires employment claims to be filed within three years of accrual of the cause of action. The Claimant's own verifying affidavit gave the date of termination as 24th January 2011, and his tabulation of dues showed claims only up to February 2010. Even taking the outer limit, accrual would be 31st December 2013, and the suit filed on 3rd January 2014 fell outside the period. The court adopted the reasoning in Fred Mudave Gogo v G4S Security Services (K) Ltd that limitation is not a mere technicality but touches the substance of the claim.

p. 4
02

Proof of the employment terms and quantum claimed

Holding

Even on the facts, the Claimant failed to prove his case on a balance of probability

Reasoning

The defence witnesses testified that all teachers were volunteers earning stipends of between Kshs. 8,000/- and Kshs. 10,000/- per month, consistent with the monthly payments the Claimant himself recorded. The Claimant's own witness was unsure of senior teachers' earnings. The claimed tabulation included specific sums for exams, text books, a computer and school registration for which no proof was availed. The court found the Claimant not credible, describing him as given to lying and peddling untruths.

p. 4

Legal principles established

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  • A civil action arising out of the Employment Act or a contract of service must be commenced within three years of the act, neglect or default complained of
  • Where a claim is barred by limitation, the suit is bad and must be dismissed as a matter of justice, not mere technicality

Court orders

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  1. 1.The Claimant's suit is dismissed for being time barred under Section 90 of the Employment Act
  2. 2.Costs of the suit awarded to the Respondents

Authorities

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Legislation

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

Cases cited (2)

  • E. Torgbhor v Ladislaus Odongo Ojuok
    [2015] eKLR
  • Fred Mudave Gogo v G4S Security Services (K) Ltd
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; suit filed in the Industrial Court 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, "Peter Maina Mwaniki v PCEA Silanga High School & another [2016] KEELRC 578 (KLR)", Case Analysis (2016). Cause No 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/578/eng@2016-08-15

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