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ELRCStruck OutNot stated in the judgment (Cause filed 21 October 2015)· [2018] KEELRC 2041 (KLR)

John Kuria Ngechu v Bata Shoe Company Ltd [2018] KEELRC 2041 (KLR)

Employment and Labour Relations Court
4 May 2018
RSRadido Stephen
413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employees have only three years to sue for unfair dismissal or breach of contract, and waiting on a criminal case will not extend that deadline.

What this practically means

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Executive summary

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The Claimant sued Bata Shoe Co. Ltd on 21 October 2015 alleging breach of contract and unfair termination of employment said to have occurred around April 2011, and further pleaded that the Respondent had him charged with stealing by servant before the Magistrate's Court, from which he was acquitted on 31 March 2015. The Respondent filed a preliminary objection on 7 March 2018 contending that the claim was time barred under section 90 of the Employment Act, 2007. An earlier, identical objection was dismissed on 13 March 2018 for failure of service, but the re-filed objection was served, and with the Claimant absent despite service on his advocate, the Court allowed it to be heard. The Court held that section 90 prescribes a 3-year limitation period for actions for unfair termination and breach of contract, and that the Claimant, having commenced the Cause in October 2015 over a cause of action arising in 2011, had acted outside the prescribed period. Relying on the decision in Attorney General & Ar. v Andrew Maina Githinji & Ar (2016) eKLR, the Court further held that the pendency of the criminal case and the subsequent acquittal could not stop time from running or revive the cause of action. The Court upheld the objection, struck out the Memorandum of Claim, and made no order as to costs. Judgment was delivered in open Court in Nairobi on 4 May 2018 by Radido Stephen, Judge.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim filed on 21 October 2015 arising from termination/breach alleged around April 2011 was time barred, as it exceeded the 3-year period.

Reasoning

The Court applied section 90 of the Employment Act, 2007, which prescribes a 3-year limitation period for claims of unfair termination and breach of contract. The alleged breaches occurred around April 2011, yet the suit was not instituted until 21 October 2015, well outside the prescribed window. No recognition or acknowledgment tolling the period was found.

p. 2
02

Effect of criminal proceedings and acquittal on limitation

Holding

The pendency of the criminal charge for stealing by servant and the Claimant's acquittal on 31 March 2015 could not stop time from running or revive the cause of action.

Reasoning

The Claimant pleaded that the Respondent caused him to be charged with stealing by servant and that he was acquitted on 31 March 2015, seemingly to explain the delay. Relying on the case law cited, the Court held that such criminal proceedings and the resulting acquittal do not suspend or extend limitation under section 90.

p. 2

Legal principles established

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  • A claim for unfair termination or breach of contract must be commenced within 3 years under section 90 of the Employment Act, 2007.
  • The pendency of criminal proceedings and a subsequent acquittal does not stop time from running or revive a time-barred cause of action.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The Memorandum of Claim is struck out
  3. 3.No order on costs

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (1)

  • Attorney General & Ar. v Andrew Maina Githinji & Ar
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; limitation governed by section 90 of the Employment Act, 2007

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, "John Kuria Ngechu v Bata Shoe Company Ltd [2018] KEELRC 2041 (KLR)", Case Analysis (2018). Not stated in the judgment (Cause filed 21 October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2041/eng@2018-05-04

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