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ELRCDismissedformerly High Court Civil Case No. 1619 of 2002 (transferred to the Employment and Labour Relations Court)· [2016] KEELRC 582 (KLR)

Laban M. Kimondo v Attorney General [2016] KEELRC 582 (KLR)

Employment and Labour Relations Court
24 August 2016
3,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, formerly personnel and administrative manager at ICDC, was appointed by the Government in February 1986 as general manager of Yuken Textiles Industry Limited, a state corporation, on a three-year contract. On 25th June 1987 he learned of his replacement as chief executive from the 1.00pm radio news and the Daily Nation, and received no official communication. He filed suit in October 2002 at the High Court claiming special and general damages based on lost earnings quantified by an actuary at Kshs. 36,415,008/- each, plus interest and costs. The Respondent, the Attorney General sued on behalf of the Government, denied the contract, raised a preliminary objection on limitation, and argued Yuken was the proper defendant and that special damages were unproved. The court distilled three issues: whether the Claimant was non-suited, whether the suit was statute barred, and what orders should issue. It held that Yuken Textiles Limited was a state corporation, a body corporate capable of suing and being sued, so the claim should have been mounted against Yuken or, upon liquidation, its Liquidator; the Claimant was non-suited against the Attorney General. Applying Divecon Ltd v Samani, the six-year limitation period under section 4(1) of the Limitation of Actions Act barred the claim filed 15 years after accrual, with no discretion to extend, section 90 of the Employment Act not applying retrospectively. The actuarial evidence was uncontroverted but did not discharge the burden of proving special damages, as no payslips, bank statements or cheques were produced. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Attorney General was the proper party to the suit

Holding

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.

Reasoning

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.

p. 5
02

Whether the suit was statute barred

Holding

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.

Reasoning

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.

p. 5
03

Whether the Claimant proved his claim for special and general damages

Holding

The Claimant failed to discharge the evidentiary burden; the actuarial report was not proof of the income and allowances claimed.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Dismissal of the case against the Respondent

Authorities

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Legislation

  • State Corporations ActSections 2, 3
  • Limitation of Actions Act (Chapter 22)Section 4(1)
  • Employment ActSections 49, 50, 90
  • Public Authorities Limitation Act
  • Government Proceedings Act
  • Civil Procedure RulesOrder VII

Cases cited (7)

  • Samuel Chege Gitau & 283 Others v The Attorney General
    Industrial Cause No. 2212 of 2012 (unreported); [2016] eKLR
  • Agricultural Finance Corporation v Lengetia Ltd
    [1985] KLR 765
  • Arnacherry Limited v Attorney General
    HC Petition No. 248 of 2013
  • Waweru Thumbi v Samuel Njoroge
    Civil Appeal No. 445 of 2003
  • Addis v Gramophone Company
    (1909) AC 488
  • Mary Mutanu Mwendwa v Ayudia Ninos De Africa Kenya (Anidan K)
    [2013] eKLR
  • Divecon Ltd v Samani
    [1995 - 1998] 1 EA 48
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

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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, "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.