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ELRCStruck OutKisumu Industrial Cause No. 147 of 2014 (formerly Kisumu High Court Case No. 9 of 2013)· [2016] KEELRC 836 (KLR)

Paul Olang' Akeyo v Maurice Abura Owino & 5 others [2016] KEELRC 836 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court), Kisumu
26 May 2016
2,050 words in judgment
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The bottom line

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A Kenyan employment claim filed over eight years after dismissal was struck out because limitation periods cannot be cured after filing.

What this practically means

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Executive summary

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The Plaintiff sued for wrongful dismissal from the Kano Plains Child and Family Programme, seeking notice pay, terminal benefits, leave, salary arrears and general damages for defamation, malicious prosecution and false imprisonment against the Programme's officials, a police officer and the Attorney General. The 1st to 4th Defendants raised a preliminary objection that the suit was time-barred under section 90 of the Employment Act 2007; the 5th and 6th Defendants objected that the tort claims offended the Public Authorities Limitations Act, Cap 39. The court first held that since termination occurred on 16th September 2004, before the Employment Act 2007 came into force, the repealed Employment Act applied with the 6-year limitation period under the Limitation of Actions Act. Even on that basis, the suit filed on 5th February 2013 was filed more than six years after termination and was therefore statute-barred. The claim that time ran from the Plaintiff's acquittal on 13th April 2010 was held relevant only to the tort claims against the 5th and 6th Defendants, and the Plaintiff had not complied with the Public Authorities Limitations Act's one-year requirement nor sought leave to sue out of time; without prior leave, such a claim is bad in law and cannot be cured retrospectively. The preliminary objections succeeded, the suit was struck out for being filed outside the limitation period, and each party was ordered to bear its own costs.

Key legal issues

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01

Applicable limitation statute

Holding

The repealed Employment Act (pre-2007) applies, carrying a 6-year limitation period for contract claims under the Limitation of Actions Act

Reasoning

The Claimant's employment was terminated on 16th September 2004, before the Employment Act 2007 came into force. Relying on Machuka Anyona Julius, the court held the 2007 Act has no retrospective application, so the repealed Employment Act and the 6-year period under the Limitation of Actions Act govern the claim.

p. 4
02

Whether the unfair termination claim is time-barred

Holding

Yes - the suit filed on 5th February 2013 was more than 6 years after the 16th September 2004 termination

Reasoning

Even under the 6-year limitation applicable under the repealed Employment Act and the Limitation of Actions Act, the suit was filed more than six years after termination. The 2004 complaints to the labour officer and demand letters did not arrest the running of time.

p. 4
03

Claims against 5th and 6th Defendants (malicious prosecution, defamation, false imprisonment)

Holding

These accrued on acquittal on 13th April 2010, but the Public Authorities Limitations Act requires filing within one year, which the Plaintiff did not show compliance with

Reasoning

The acquittal argument could only support the tort claims against the 5th and 6th Defendants. The Public Authorities Limitations Act requires such claims within twelve months of the cause accruing, and no leave to sue out of time was sought, rendering those claims bad in law on their face.

p. 4

Legal principles established

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  • The Employment Act 2007 has no retrospective application; where employment was terminated before its commencement, the repealed Employment Act applies
  • A claim for defamation and false imprisonment against state authorities accrues on acquittal but must be filed within one year under the Public Authorities Limitations Act
  • Leave to file suit out of time must be sought before the claim is filed; what is bad in law cannot be cured retrospectively

Court orders

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  1. 1.The preliminary objections by the Defendants succeed
  2. 2.The Plaintiff's suit is struck out for being filed outside the limitation period
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 90 (Act No. 11 of 2007)
  • Employment Act (repealed, 1976)6-year limitation period
  • Public Authorities Limitations ActCap 39 (claims within one year)
  • Limitation of Actions Actsection 4(1)
  • Interpretation and General Provisions Actsection 23(1), (2), (3)

Cases cited (6)

  • RAMA KRISHNARAO v SAJ CERAMICS LIMITED
    Industrial Court Cause No.2138 of 2012
  • PETER NYAMAI & 7 OTHERS v M. J. CLARKE LIMITED
    [2013] eKLR
  • BEATRICE KAHAI ADAGALA v POSTAL CORPORATION OF KENYA
    [2014] eKLR
  • MACHUKA ANYONA JULIUS & 5 OTHERS v OMAERA PHARMACEUTICALS LIMITED
    Cause No.1189 of 2012
  • ESTHER KAHAI KIHIMA v TRIDENT INSURANCE COMPANY LIMITED
    [2013] eKLR
  • Balozi Housing Co-operative Society Ltd v Samuel Waiganjo Thuo t/a Waiganjo and Associates
    [2002] eKLR
On appeal from
High Court of Kenya at Kisumu
Kisumu High Court Case No.9 of 2013
Jurisdiction invoked
Transferred from the High Court to the Industrial Court on 12th June 2014 (employment and labour relations jurisdiction); limitation challenged under section 90 of the Employment Act 2007 and the Public Authorities Limitations Act, Cap 39

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, "Paul Olang' Akeyo v Maurice Abura Owino & 5 others [2016] KEELRC 836 (KLR)", Case Analysis (2016). Kisumu Industrial Cause No. 147 of 2014 (formerly Kisumu High Court Case No. 9 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/836/eng@2016-05-26

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