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ELRCAllowedCivil Appeal No 16 of 2017· [2019] KEELRC 2467 (KLR)

Nelion Trading Limited v David Okeno Onaya [2019] KEELRC 2467 (KLR)

Employment and Labour Relations Court
31 January 2019
LNLINNET NDOLO
1,028 words in judgment
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The bottom line

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Kenya's Employment Court confirmed workplace injury claims must be filed within three years under the Employment Act, and late claims are thrown out.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against the ruling of Hon. Francis Kyambia, SPM delivered on 24th November 2017, in which the trial magistrate overruled the Appellant's preliminary objection that the Respondent's suit arising from a workplace injury was time barred under Section 4(2) of the Limitation of Actions Act. The Appellant relied on the High Court decision in Kiamokama Tea Factory Co. Ltd v Joshua Nyakoni [2015] eKLR, contending the claim was tortious and subject to the three-year limitation period. Linnet Ndolo J identified a single issue: whether the Respondent's suit was statute barred. The Court held that the employer's duty of care regarding workplace safety is contractual rather than tortious, since the employee would not have been injured but for the employment relationship, and was persuaded by Athibeta Minayo v Robers Chelimo and C.E.F.A Kenya v Moses Muriuki Matiri. However, the Court departed from the trial court's adoption of the Limitation of Actions Act: since the accident occurred on 17th December 2010, the applicable limitation law was Section 90 of the Employment Act, 2007, which requires such claims to be filed within three years with no discretion. The claim filed on 30th August 2016 was therefore out of time, and the Court disregarded the unsubstantiated submission that Section 90 took effect in 2012. The appeal was allowed, the ruling and attendant orders were set aside, and each party was directed to bear their own costs in the appeal and the proceedings below.

Key legal issues

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01

Whether a workplace injury claim is founded in tort or contract for limitation purposes

Holding

The duty of care as to employee safety at the workplace is contractual; the dominant cause of action arises from contract although the claim may borrow heavily from tort principles.

Reasoning

The court disagreed with the High Court authority in Kiamokama Tea Factory Co. Limited v Joshua Nyakoni that breach of statutory duty of care by an employer is a tort. It reasoned that an employee injured at the workplace would not have met the accident had he not been an employee, making the employment relationship the foundation of the claim. It was persuaded by Athibeta Minayo v Robers Chelimo and C.E.F.A Kenya v Moses Muriuki Matiri that the dominant cause of action is contractual.

p. 2
02

Whether the Respondent's suit was statute barred

Holding

Yes. The accident occurred on 17th December 2010, so Section 90 of the Employment Act, 2007 applied, requiring filing within three years; the suit filed on 30th August 2016 was out of time.

Reasoning

The trial court erred by adopting the Limitation of Actions Act as the applicable limitation law. Since the accident occurred in 2010, Section 90 of the Employment Act, 2007 governed, imposing a three-year limit with no discretion. The suit filed on 30th August 2016 exceeded that period. The court disregarded the unsubstantiated submission by counsel for the Respondent that Section 90 took effect only in 2012.

p. 2

Legal principles established

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  • The duty of care owed by an employer for the safety of employees at the workplace is contractual in nature, though determination may borrow from tort principles.
  • Limitation for claims arising out of the Employment Act or a contract of service is governed by Section 90 of the Employment Act, 2007, not the general limitation periods in the Limitation of Actions Act.
  • Section 90 of the Employment Act leaves no room for discretion and claims must be filed within three years of accrual of the cause of action.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling dated 24th November 2017 together with all attendant orders are set aside
  3. 3.Each party will bear their own costs in the appeal and in the proceedings in the court below

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 4(1)
  • Employment Act, 2007Section 90

Cases cited (4)

  • Malindi Law Society v Attorney General & 4 others
    Malindi Constitutional Petition No. 3 of 2016
  • Kiamokama Tea Factory Co. Ltd v Joshua Nyakoni
    [2015] eKLR
  • Athibeta Minayo v Robers Chelimo & another
    [2005] eKLR
  • European Committee for Agriculture Training Rural Development (C.E.F.A) Kenya v Moses Muriuki Matiri
    [2015] eKLR
On appeal from
Magistrates' Court (ruling of Hon. Francis Kyambia, SPM)
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the trial magistrate's ruling (Employment and Labour Relations Court Act; appeal against ruling on preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nelion Trading Limited v David Okeno Onaya [2019] KEELRC 2467 (KLR)", Case Analysis (2019). Civil Appeal No 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2467/eng@2019-01-31

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