Laban M. Kimondo v Attorney General [2016] KEELRC 582 (KLR)
The bottom line
#A former Yuken Textiles manager lost a Kshs 36 million claim because he sued the wrong party, filed 15 years too late, and lacked documentary proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the Attorney General was the proper party to the suit
The Claimant was non-suited; the claim should have been brought against Yuken Textiles Limited, a state corporation capable of suing and being sued, and upon liquidation against its Liquidator.
Yuken Textile Industries Limited was a state corporation under the State Corporations Act, a body corporate with perpetual succession capable of suing and being sued. Although the Attorney General is a fit defendant on behalf of Government generally, the contract of employment was with Yuken, not the Government. Following Samuel Chege Gitau, the appropriate body to sue is the entity responsible. The proper defendant was Yuken or, on liquidation, its Liquidator.
Whether the suit was statute barred
The suit was statute barred as it was filed in 2002, some 15 years after the cause of action accrued in 1987; section 4(1) of the Limitation of Actions Act allows six years for contract actions with no discretion to extend.
The Court of Appeal in Divecon Ltd v Samani held that no action founded on contract may be brought after six years and that section 4(1) of the Limitation of Actions Act confers no discretion to extend time. Section 90 of the Employment Act does not apply to causes of action that accrued before its enactment, so it could not save the claim accrued in 1987.
Whether the Claimant proved his claim for special and general damages
The Claimant failed to discharge the evidentiary burden; the actuarial report was not proof of the income and allowances claimed.
The actuary is a source of evidence, not the source of proof. No payslips, bank statements or cheques were produced to establish the income and allowances claimed. The required standard is the balance of probability, and the uncontroverted actuarial evidence did not meet it. Damages based on anticipated earnings and imponderables could not be sustained.
Legal principles established
#- An action founded on contract must be brought within six years of the accrual of the cause of action, and there is no discretion to extend that time under section 4(1) of the Limitation of Actions Act
- A state corporation is a body corporate with perpetual succession capable of suing and being sued in its own name; suits arising from its contracts should be mounted against it (or its liquidator) and not the Government
- Special damages must be pleaded and strictly proved; an actuarial report alone, without payslips, bank statements or cheques, does not discharge the burden of proof on a balance of probability
Court orders
#- 1.Dismissal of the case against the Respondent
- Jurisdiction invoked
- Jurisdiction exercised on transfer of the suit from the High Court to this Court (transferred 4th June 2014 by Ougo J); employment claim against the Government brought under the Government Proceedings Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laban M. Kimondo v Attorney General [2016] KEELRC 582 (KLR)", Case Analysis (2016). formerly High Court Civil Case No. 1619 of 2002 (transferred to the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/582/eng@2016-08-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.