Zaib Wanga Makokha v Bomu Hospital [2018] KEELRC 1637 (KLR)
The bottom line
#Kenyan employment claims must be filed within 3 years of dismissal — waiting for a related criminal case to end won't excuse the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the criminal trial tolled the limitation period for filing the employment claim
It did not. The criminal trial was unrelated to the disciplinary process, and the Claimant misapprehended its effect on the employment dispute.
The Court held that criminal and disciplinary processes differ in procedure, evidential threshold and objectives: the disciplinary process is a private affair grounded in the employer's right to manage its business, while the criminal trial is a public affair involving the State. Outcomes in one do not affect the other absent express contractual provision. The criminal court was not mandated to inquire into the employment offence, and the employer did not surrender its workplace prerogatives to public authorities.
Whether the dismissal amounted to a continuing injury extending the limitation period
No. Termination was a single act on a specific date; there was no continuing injury, and the criminal trial could not amount to continuing injury.
The Court found termination took place on 12th August 2013, a date known to the parties, when the cause of action arose. Relying on the Court of Appeal's decision in Rift Valley Railways, it held the only exception to the 3-year limitation under Section 90 is continuing injury, which was absent here. The criminal trial could not by any stretch of argument constitute continuing injury justifying a late claim.
Whether the Court had temporal jurisdiction over the Claim
The Court lacked temporal jurisdiction under Section 90 of the Employment Act 2007 and dismissed the Claim on the Respondent's application.
The claim was filed on 30th November 2017, approximately 4 years and 3 months after the termination of 12th August 2013, well beyond the 3-year limitation period. No exception applied. The Court therefore upheld the objection and allowed the Respondent's application dated 12th January 2018 to dismiss the Claim, with no order on costs.
Legal principles established
#- Criminal proceedings and workplace disciplinary processes are unrelated; outcomes in one have no bearing on the other unless the parties expressly agree that disciplinary sanction should abide the criminal outcome
- There are no exceptions to the 3-year limitation period under Section 90 of the Employment Act 2007, save for cases of continuing injury or damage
- Termination of employment on a specific known date is a single act giving rise to a cause of action on that date, not a continuing injury
Court orders
#- 1.The Respondent's Application dated 12th January 2018 is allowed
- 2.The Claim is dismissed
- 3.No order on the costs
- Jurisdiction invoked
- Section 90 of the Employment Act 2007 (temporal jurisdiction of the Court over employment claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zaib Wanga Makokha v Bomu Hospital [2018] KEELRC 1637 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1637/eng@2018-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.