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ELRCDismissedCause (Nakuru) - not stated in judgment· [2016] KEELRC 638 (KLR)

Hesbon Obote Vikiru v Super Foam Limited [2016] KEELRC 638 (KLR)

Employment and Labour Relations Court
30 September 2016
RSRadido Stephen
1,016 words in judgment
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The bottom line

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A Kenyan court threw out an unfair dismissal claim filed over five years after the employee learned of his sacking, because employment claims must be filed within three years.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from about 1993 and transferred to the Nakuru Service Centre in December 2003, sued on 7 October 2014 alleging unfair termination of employment by a press notice published on 29 July 2009 disclaiming him as an employee. The Respondent asserted he had absconded duty and could not be traced. The Claimant denied absconding, stating he had health issues, had permission to seek medical treatment, and learned of the notice while recuperating; he was later arrested and charged with theft, and acquitted. A preliminary objection on limitation was declined in January 2015 for requiring interrogation of facts, and the issue was reserved for the hearing. The Court framed four issues: limitation, whether the press notice effected a dismissal, unfairness, and remedies. It held the notice constituted repudiation/frustration of the contract, coming to the Claimant's knowledge on 29 July 2009. Time under section 90 of the Employment Act therefore ran from that date and lapsed on or around 28 July 2012. The suit filed on 7 October 2014 was statute barred; the Claimant should not have waited for the conclusion of the criminal trial. The remaining issues were left unexamined as academic and the Cause was dismissed with no order as to costs.

Key legal issues

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01

Whether the cause of action is statute barred under section 90 of the Employment Act

Holding

Yes. The cause of action accrued on 29 July 2009 when the Claimant saw the press notice; limitation expired on or around 28 July 2012, and the suit filed on 7 October 2014 was out of time.

Reasoning

The press notice of 29 July 2009 evinced the Respondent's intention not to be bound by the employment contract, amounting to repudiation/frustration. The Claimant's own demand letter of 15 November 2013 and paragraph 5 of the Memorandum of Claim showed he knew of and impugned the summary dismissal of 29 July 2009. Time therefore ran from 29 July 2009 for three years, expiring about 28 July 2012. Filing on 7 October 2014 exceeded the period, and the pending criminal trial did not toll limitation.

p. 3
02

Whether the Claimant was dismissed through the press notice

Holding

The Court characterised the press notice as repudiation/frustration of the contract rather than a conventional dismissal, terminating the contract automatically, but did not decide the unfairness question as the cause was statute barred.

Reasoning

The Court found that by publishing the notice the Respondent was evincing an intention no longer to be bound by the contract, frustrating it and destroying or fundamentally altering its objective. Frustration under common law leads to automatic termination with no dismissal as such. Having resolved the limitation issue adversely to the Claimant, the Court declined to examine the remaining issues as academic.

p. 2

Legal principles established

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  • The effective date of a termination of employment, when not clear or specified, should be determined objectively depending on the circumstances of each case.
  • Time for limitation begins to run from the date the employee knew of the termination, here the date he saw the press notice, and he had three years from then to commence legal action.
  • Publication of a press notice disclaiming an employee constitutes repudiation/frustration of the employment contract, which at common law operates as automatic termination without dismissal.

Court orders

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  1. 1.The Cause is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 invoked on limitation)

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, "Hesbon Obote Vikiru v Super Foam Limited [2016] KEELRC 638 (KLR)", Case Analysis (2016). Cause (Nakuru) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/638/eng@2016-09-30

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