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ELRCStruck OutNot stated in judgment· [2017] KEELRC 1913 (KLR)

Albert Ngala Kiamba & another v G4S Kenya Limited [2017] KEELRC 1913 (KLR)

Employment and Labour Relations Court
27 January 2017
OMO.N. Makau
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out ex-security guards' claim for salaries because they waited nearly seven years, past the mandatory three-year limit for employment suits.

What this practically means

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Executive summary

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The claimants, security guards employed by the respondent from 2006, were arrested on 19.6.2009 and charged with stealing, and were acquitted on 30.4.2015. They sued seeking a declaration that they remained employees entitled to salary from June 2009, or in the alternative accrued terminal dues plus compensation for unfair termination. The respondent filed no defence but raised a preliminary objection that the suit was statute barred under Section 90 of the Employment Act and that no leave could issue to file out of time. The claimants countered that the objection raised issues of fact unfit for summary determination and relied on Paul Dedan Ochieng, where Rika J held that leave cannot be refused where no specific termination date is proved. The court held that the claimants never returned to work after their arrest, drew no salary and made no demand, and had not pleaded suspension; the employment relationship therefore ended de facto on 19.6.2009 by the conduct of both parties. Following Gunton, the court treated the contract as constructively terminated then. The three-year limitation period under Section 90 expired on 18.6.2012, so the suit filed on 21.3.2016 was time barred. The court further held that no leave for enlargement of time is available under the letter and spirit of Section 90. The court declined to follow Paul Dedan Ochieng, struck out the suit, and made no order as to costs.

Key legal issues

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01

Whether the suit was statute barred under Section 90 of the Employment Act

Holding

Yes. The employment relationship ended de facto on 19.6.2009 when the claimants were arrested and never returned to work, drew no salary, and made no demand; the three-year period lapsed on 18.6.2012, well before the suit filed on 21.3.2016

Reasoning

The court found no dispute that the claimants last worked on 19.6.2009 and never returned, drew salary or demanded pay. They did not plead suspension or any reason for not returning. Relying on Gunton, the court held the contract ceased constructively from that date, so the cause of action accrued then and the suit filed in 2016 was out of time.

p. 2
02

Whether leave can issue to bring a suit out of time in an employment contract claim

Holding

No. No leave was sought, and even if sought it would not be available under the letter and spirit of Section 90 of the Employment Act, which mandates commencement within three years

Reasoning

The court read Section 90 of the Employment Act, which overrides Section 4(1) of the Limitation of Actions Act, and held that its mandatory language forecloses any enlargement of time for claims founded on employment contracts. The claimants had not even applied for such leave.

p. 3

Legal principles established

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  • Where an employee never reports back to work and neither draws nor demands salary, the employment relationship may be held to have ended de facto by conduct, and the limitation period runs from that date
  • No civil action based on the Employment Act or a contract of service may be instituted unless commenced within three years, and no leave for enlargement of time is available under Section 90

Court orders

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  1. 1.The suit struck out for being statute barred
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (3)

  • Gunton vs Londo Borough of Richmond upon Thames
    [1980] 3 ALL ER
  • Humphrey Gitonga Ashford v B.O.G Chuka High School
    [2010] eKLR
  • Paul Dedan Ochieng & 2 others vs Harambee Co-operative Savings and Credit Society
    null
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; objection founded on Section 90 of the Employment 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, "Albert Ngala Kiamba & another v G4S Kenya Limited [2017] KEELRC 1913 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1913/eng@2017-01-27

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