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ELRCStruck OutNot stated in the judgment as supplied· [2018] KEELRC 1854 (KLR)

Paul Kirimi v Meru Central Dairy Co-op Limited [2018] KEELRC 1854 (KLR)

Employment and Labour Relations Court
8 May 2018
NMNzioki wa Makau
2,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim with real merit was struck out simply because it was filed more than three years late.

What this practically means

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Executive summary

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The Claimant, employed as an executive driver from 1 June 2008, was suspended on 18 July 2011 for allegedly failing to account for sales totalling Kshs. 349,222/-. He was subsequently charged with two counts of stealing by servant and one of creating a disturbance, and was acquitted of all counts on 12 February 2015. He alleged that the failure to reinstate him after acquittal amounted to wrongful, unfair and constructive dismissal and sought a declaration to that effect, general damages, 66 months' salary (Kshs. 1,125,300/-) and reinstatement. The Respondent defended the claim as lawful termination and raised limitation. The defence called no witness. The court addressed limitation first, holding that it goes to jurisdiction. Applying Section 90 of the Employment Act, 2007, the court found the cause of action accrued in 2011 and suit filed on 2 February 2017 was, on any reckoning, out of time. Following Mehta v Shah and Attorney General v Andrew Maina Githinji, the court held that the pendency of the criminal case did not suspend limitation and that limitation removes remedies irrespective of merits. Though the court accepted the Claimant's claim on the unpaid half salary and manner of dismissal was potentially meritorious, the suit was struck out, with each party bearing their own costs.

Key legal issues

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01

Whether the suit was filed outside the limitation period under Section 90 of the Employment Act

Holding

Yes - the claim accrued at suspension/dismissal in 2011 and suit filed on 2 February 2017 was out of time; the criminal case's pendency did not toll limitation

Reasoning

The court held that limitation goes to jurisdiction and must be dealt with first. The Claimant was suspended on 18 July 2011, so time began running by July 2012 at the latest, giving him until 18 July 2015; even on the Respondent's reckoning (dismissal in December 2011), time expired in December 2014. Suit was filed on 2 February 2017. Following Mehta v Shah and the Andrew Maina Githinji case, the pendency of the criminal proceedings did not stop the clock, and the delay meant documents could not be traced for the defence.

p. 3

Legal principles established

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  • The limitation period for employment claims under Section 90 of the Employment Act, 2007 is three years, and pendency of a related criminal case does not suspend it
  • The effect of limitation is to remove remedies irrespective of the merits of the case
  • Limitation protects both parties from prejudice from stale claims when evidence has deteriorated

Court orders

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  1. 1.The suit is struck out for being filed outside the limitation period
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Penal CodeSection 281
  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 41

Cases cited (5)

  • Jackson Nzioka Ndunda v Viable Deco Solutions
    [2015] eKLR
  • Festus Munyao Makau v Rods and Steel Limited
    [2017] eKLR
  • Mehta v Shah
    [1965] EALR 321
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • Franklin Mbae Mburi v Meru Central Farmers Co-op Union Ltd & 2 Others
    [2017] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 (limitation under Section 90 raised as a jurisdictional bar)

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 Kirimi v Meru Central Dairy Co-op Limited [2018] KEELRC 1854 (KLR)", Case Analysis (2018). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1854/eng@2018-05-08

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