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ELRCDismissedCause No 14 of 2014· [2016] KEELRC 1426 (KLR)

Fortunata Wanjiku Muchemi & 8 others v Archdiocese of Nyeri Consolata Hospital, Mathari [2016] KEELRC 1426 (KLR)

Employment and Labour Relations Court (Industrial Court)
7 April 2016
BOByram Ongaya
794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed retired hospital workers' benefits claim because they filed it more than three years after leaving employment.

What this practically means

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Executive summary

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The claimants, retired workers, filed a memorandum of claims on 21.01.2014 through A.J. Kariuki & Company Advocates seeking payment of retirement benefits under the parties' collective bargaining agreement, participation of their union KUDHEIHA, costs and interest, and any other just relief. The respondent, Consolata Hospital, Matathari, Nyeri, filed preliminary objections and a defence, contending that the suit was res judicata by virtue of an award in Industrial Court of Kenya Cause No. 176(N) of 2008 between the union and the same hospital, and that the claim was time barred under section 90 of the Employment Act, 2007 since the claimants had been retired or severed in 2008 with dues paid in January 2009. The court framed two issues. On res judicata, it held that while the earlier suit was between the union and the same respondent, the list of 46 members was not before the court, and the claimants' denial that they were among those members raised a dispute of fact; a preliminary objection cannot succeed where the parties are in dispute about relevant facts, so that ground failed. On limitation, the court found the cause of action arose from the retirement in January 2009 and a letter dated 10.03.2009, and the claim filed on 21.01.2014 exceeded the 3-year period in section 90 of the Employment Act. Accordingly the court dismissed the suit and ordered the claimants to pay the respondent's costs for the period after 23.10.2015. Judgment was delivered at Nyeri on 7th April 2016 by Byram Ongaya, Judge.

Key legal issues

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01

Res judicata

Holding

The preliminary objection on res judicata failed because whether the claimants were among the 46 members in the earlier suit is a dispute of fact requiring a full hearing

Reasoning

The earlier suit (Cause No. 176(N) of 2008) involved the same hospital and the union on behalf of 46 listed members, but the list was not before the court. Only a denial by the claimants that they were among the 46 members was on record. Since a preliminary objection must not depend on disputed facts, the objection could not be determined without a full trial.

p. 2
02

Limitation of actions

Holding

The claim, filed on 21.01.2014 for terminal dues arising from retirement in January 2009 and a letter dated 10.03.2009, was time barred under section 90 of the Employment Act

Reasoning

The claimants retired by January 2009 and their dispute related to a letter dated 10.03.2009. The memorandum of claims was filed on 21.01.2014, beyond the 3-year period prescribed by section 90 of the Employment Act, 2007. Consequently the suit was liable to dismissal, in line with the respondent's submissions.

p. 2

Legal principles established

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  • A preliminary objection founded on disputed facts cannot succeed; preliminary objections must rest on facts not in dispute
  • Claims for terminal dues arising from retirement are subject to the 3-year limitation period under section 90 of the Employment Act, 2007

Court orders

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  1. 1.The claimants' suit is dismissed
  2. 2.The claimants to pay the respondent's costs of the suit for the period after 23.10.2015

Authorities

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Legislation

  • Employment Act, 2007section 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (s. 90 invoked)

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, "Fortunata Wanjiku Muchemi & 8 others v Archdiocese of Nyeri Consolata Hospital, Mathari [2016] KEELRC 1426 (KLR)", Case Analysis (2016). Cause No 14 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1426/eng@2016-04-07

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