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ELRCAllowedNot stated in judgment (ELRC Miscellaneous Application, Kisumu)· [2019] KEELRC 559 (KLR)

Fred Nyambera v Kenya Post Office Saving Bank [2019] KEELRC 559 (KLR)

Employment and Labour Relations Court
24 October 2019
MNMathews N. Nduma
621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that employment claims run three years from when the real grievance arises, not necessarily from suspension.

What this practically means

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Executive summary

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The applicant, a former employee whose contract effectively ended in suspension, sought leave to file suit out of time. He was suspended on 11 March 2015 after being arrested and charged with the offence of stealing, and was acquitted on 14 December 2016. He deponed that he instructed his advocate to file suit after the criminal case concluded, but the advocate defaulted, and the application was filed on 29 March 2019. The respondent opposed, contending that the intended suit was barred by Section 90 of the Employment Act, 2007, which imposes a three-year limitation period on employment claims; that a claimant need not await the outcome of a criminal trial before filing an employment suit; and that the court lacked jurisdiction to enlarge time on employment causes. Relying on Dennis Kisang Ripko v Kenya Commercial Bank (Onyango J) on the operation of Section 90, and on the Court of Appeal's definition of a cause of action in the Attorney General v Andrew Maina Githinji, the court held that because the employer never terminated the applicant's employment but only suspended him pending the criminal trial, the cause of action crystallised upon his acquittal on 14 December 2016, when the suspension was not lifted. Time therefore ran from that date, and the three-year period would expire only on 14 December 2019. The application was granted, the court holding that the suit was not yet time barred. No costs order was recorded.

Key legal issues

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01

When the cause of action accrued for limitation purposes

Holding

The cause of action accrued on acquittal, not on suspension, because employment was never terminated

Reasoning

The applicant was suspended in March 2015 pending criminal charges for stealing. The employer did not terminate employment but merely kept him under suspension. The criminal case concluded in his favour on 14 December 2016. The court held the grievance arose only when the suspension was not lifted upon acquittal, so time began running then, not at suspension.

p. 2
02

Whether the intended suit is time barred under Section 90 of the Employment Act

Holding

The three-year limitation period had not elapsed; it would run out on 14 December 2019

Reasoning

Section 90 caps employment claims at three years, overriding the six-year period in the Limitation of Actions Act. Since the cause of action crystallised on 14 December 2016 and the application was filed on 29 March 2019, the three-year period had not expired. Leave to file out of time was therefore unnecessary in substance but was granted.

p. 2

Legal principles established

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  • Where an employee is only suspended pending the outcome of a criminal case and is not dismissed, the cause of action crystallises upon conclusion of the criminal case
  • Section 90 of the Employment Act limits employment claims to three years, displacing the six-year contractual limitation period

Court orders

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  1. 1.The application to file the suit out of time is granted
  2. 2.A declaration that the suit is not yet time barred

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1); Part III

Cases cited (3)

  • Dennis Kisang Ripko vs Kenya Commercial Bank
    Kisumu ELRC Misc. Application No. 12 of 2015
  • The Hon. Attorney General and another vs Andrew Maina Githinji and another
    Nyeri Civil Appeal No. 21 of 2015 (2016) eKLR
  • James Mugeria Igat
    null
Jurisdiction invoked
Not expressly stated; application for leave to file suit out of time under the Limitation of Actions Act regime as applied to Employment Act claims

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, "Fred Nyambera v Kenya Post Office Saving Bank [2019] KEELRC 559 (KLR)", Case Analysis (2019). Not stated in judgment (ELRC Miscellaneous Application, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/559/eng@2019-10-24

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