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ELRCDismissedEmployment and Labour Relations Court Cause (Mombasa), Memorandum of Claim filed 14th July 2015· [2019] KEELRC 61 (KLR)

James Muthusi, Hamisi A. Mwasereye, Ephas S. Munala, Geoffrey N. Kago, Baile Famau, Samson M. Kimuli & Jarim Ondego v Kenya Ports Authority [2019] KEELRC 61 (KLR)

Employment and Labour Relations Court
11 December 2019
LNLinnet Ndolo
1,430 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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The Employment Court dismissed KPA employees' claim for acting allowances because it was filed too late, showing time limits can defeat even genuine employment claims.

What this practically means

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Executive summary

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Seven employees of Kenya Ports Authority, all Engine Room Assistants, claimed orally to have been appointed in 2008 to act in the higher position of Senior Engine Room Assistant, Job Grade HM4, until their confirmation on 31st December 2011, without payment of acting allowances (salary, house, extra hours, meals and shift allowances), each claiming roughly Kshs 5.1 to 5.4 million, plus costs and interest. The Respondent denied the claims, relying on its Human Resources Manual 2008 which required acting appointments to be in writing and in established posts, and raised a preliminary objection that the claims were statute barred. The court addressed limitation first as a jurisdictional issue. It reproduced Section 90 of the Employment Act (three years, or twelve months after cessation for continuing injury) and Section 66 of the Kenya Ports Authority Act (twelve months, or six months for continuing injury), noting the Court of Appeal's affirmation of Section 66 as applicable to employment claims against the Authority. Rejecting the Claimants' argument that continued employment rendered the unpaid allowances a continuing injury, the court held the cause of action was the performance of acting duties without pay, which accrued on cessation of the acting period in December 2011. The claim filed on 14th July 2015 was therefore time barred even under the longer three-year period, and the claimants' withdrawn application for extension of time showed their own awareness. The entire claim was dismissed for want of jurisdiction, but in light of the persisting employment relationship each party was ordered to bear its own costs.

Key legal issues

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01

Limitation and jurisdiction over claims for unpaid acting allowances

Holding

The claim was statute barred under both Section 90 of the Employment Act and Section 66 of the Kenya Ports Authority Act, depriving the Court of jurisdiction; the claim was dismissed

Reasoning

The court first identified the cause of action: the Claimants' complaint was that they performed acting duties without being paid acting allowances. The acting period ran from 31st July 2008 until confirmation in December 2011, so the cause of action accrued in December 2011. A claim filed on 14th July 2015 exceeded even the three-year period under Section 90 of the Employment Act, let alone the shorter twelve-month period under Section 66 of the Kenya Ports Authority Act. Continued employment did not constitute a continuing injury.

p. 3
02

Whether unpaid allowances amount to a 'continuing injury or damage'

Holding

No; the mere fact that the Claimants remained in the Respondent's employment did not make the non-payment of acting allowances a continuing injury

Reasoning

Counsel argued that because the Claimants were still employed, their claims were of the nature of continuing injury or damage and time could not run. The court rejected this, reasoning that the cause of action is the act causing the complaint - performing acting duties without pay - which concluded when the acting period ended in December 2011. The claimants' own awareness was evidenced by their withdrawn application for extension of time.

p. 3

Legal principles established

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  • The cause of action for unpaid acting allowances accrues at the end of the acting period, not as a continuing injury by virtue of continued employment
  • Section 66 of the Kenya Ports Authority Act is the applicable limitation law in employment claims against the Authority

Court orders

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  1. 1.The Claimants' entire claim is dismissed as statute barred
  2. 2.Each party to bear their own costs in light of the persisting employment relationship

Authorities

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Legislation

  • Employment ActSection 90
  • Kenya Ports Authority ActSection 66
  • Limitation of Actions ActSection 4(1)
  • Kenya Ports Authority Human Resources Manual 2008Section B.12(b)

Cases cited (2)

  • Kenya Ports Authority v Cyrus Maina Njoroge
    [2018] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; preliminary objection on limitation under Section 90 of the Employment Act and Section 66 of the Kenya Ports Authority 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, "James Muthusi, Hamisi A. Mwasereye, Ephas S. Munala, Geoffrey N. Kago, Baile Famau, Samson M. Kimuli & Jarim Ondego v Kenya Ports Authority [2019] KEELRC 61 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Cause (Mombasa), Memorandum of Claim filed 14th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/61/eng@2019-12-11

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