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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1196 (KLR)

William Kadima & 18 others v National Social Security Fund Board of Trustees [2018] KEELRC 1196 (KLR)

Employment and Labour Relations Court
15 May 2018
1,467 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenyan employees must sue over unfair termination within three years of dismissal — employer apologies or debt acknowledgements won't buy extra time.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (M. Mbaru, J) determines a Notice of Preliminary Objection raised by the National Social Security Fund Board of Trustees in its Statement of Defence filed on 18th September, 2017. The objection targeted nine named claimants who exited employment through voluntary early retirement on 30th April, 2013, on the ground that their claim, filed on 15th May, 2017, was outside the three-year limitation period in section 90 of the Employment Act, 2007. The claimants opposed, arguing that the cause of action arose from the 2011 PWC restructuring report and that the respondent's subsequent acknowledgements of salary arrears - the Bwondora committee report of 2014 admitting a debt of Kshs.45,915,113.79 and a letter of 9th September, 2016 to the Commission on Administrative Justice - lifted the limitation period. Relying on Hilarion Mwabolo v Kenya Commercial Bank and the Court of Appeal's decision in Attorney General v Andrew Maina Githinji, the court held that the cause of action in employment claims accrues on the date of termination, that post-termination events at the workplace do not apply to a separated employee, and that section 90 applies in mandatory terms with no room for the extensions recognised in general civil cases such as those cited by the claimants. The objection was allowed; the claims of the employees terminated on 30th April, 2013 were dismissed as time barred and the claimant was directed to amend the Memorandum of Claim to remove them from the record. The remaining claims continue. No costs order is stated in the judgment.

Key legal issues

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01

Accrual of the cause of action in employment claims

Holding

The cause of action accrued on the date of termination (30th April, 2013), not on later events such as the Bwondora committee report or acknowledgement of debt

Reasoning

Relying on Hilarion Mwabolo v Kenya Commercial Bank, the court held that accrual takes effect from the date of termination as communicated. Matters taking place at the workplace after termination do not apply to the former employee. A suit filed on 15th May, 2017 was over three years, in fact four years, after termination and therefore outside the three-year window in section 90 of the Employment Act, 2007.

p. 3
02

Effect of acknowledgement of debt on limitation under section 90

Holding

Acknowledgement of a debt does not lift or extend the limitation period for employment claims under section 90

Reasoning

The claimants argued that the Bwondora committee report of May 2014, the respondent's admission of owing Kshs.45,915,113.79, and the letter of 9th September, 2016 to the Commission on Administrative Justice acknowledged the debt and lifted the limitation period. The court held that the authorities relied on related to civil cases unrelated to causes of action arising out of employment, and section 90 applies in mandatory terms with no such extension available.

p. 3
03

Scope of the preliminary objection on limitation

Holding

The objection succeeded only against the claimants listed in paragraph 2 of the Statement of Defence; the suit continues as against the remaining claimants

Reasoning

The respondent's objection targeted the nine named former employees who exited through voluntary early retirement on 30th April, 2013. The court allowed the objection only to the extent of those claims, dismissing them as time barred and directing amendment of the Memorandum of Claim to remove them, leaving the rest of the claim intact.

p. 3

Legal principles established

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  • A cause of action in employment claims accruing from termination takes effect from the date of termination as stated in the letter communicating the termination
  • Section 90 of the Employment Act applies in mandatory terms and the reasons for extending time in civil cases are not available under it
  • Termination of employment, whether lawful or unlawful, is actionable from the date it is effected

Court orders

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  1. 1.The preliminary objections by the respondent are allowed
  2. 2.The claims relating to employees terminated on 30th April, 2013 are time barred and are dismissed
  3. 3.The claimant shall amend the Memorandum of Claim removing claimants set out under paragraph 2 of the Statement of Defence from the record

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)

Cases cited (8)

  • Kisii County Government versus Masosa Construction Company Ltd
    [2015] eKLR
  • Gateway Insurance Company Limited versus Nairobi City Council
    [2009] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Drummond Jackson vs. Britain Medical Association
    (1970) 2 WLR 688
  • Read vs. Brown
    (1889), 22 QBD 128
  • Letang vs. Cooper
    [1964] 2 All ER 929
  • Benjamin Wachira versus Public Service Commission & another
    [2014] eKLR
  • Hilarion Mwabolo –vs- Kenya Commercial Bank
    [2013] eKLR
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, "William Kadima & 18 others v National Social Security Fund Board of Trustees [2018] KEELRC 1196 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1196/eng@2018-05-15

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