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ELRCDismissedNot stated in judgment· [2020] KEELRC 1145 (KLR)

Mark Gori Adoo v Pan Affrican Trucks & Equipment (K) Ltd [2020] KEELRC 1145 (KLR)

Employment and Labour Relations Court
29 April 2020
OMONESMUS N. MAKAU
1,232 words in judgment
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The bottom line

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A Kenyan court confirmed employees have three years from the end of their employment to sue for unpaid benefits like commission.

What this practically means

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Executive summary

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The claimant sued on 7 November 2014 seeking commission on sales earned in 2008 and 2009 under his contract of employment, which ended on 31 December 2011 upon his retirement. The respondent filed a preliminary objection on 30 October 2019 on two grounds: that the suit was statute barred under section 90 of the Employment Act, which requires such suits to be commenced within three years, and that the court therefore lacked jurisdiction. The respondent argued that commission accrued between 2008 and 2009, so a suit filed in 2014 was out of time and an afterthought. The claimant countered that his cause of action crystallised on 23 January 2012 when the respondent indicated it would not pay the commission, so the suit was within time. The court, Makau J, adopted the classic definitions of cause of action from Letang v Cooper and Drummond Jackson, holding that a cause of action arises when the aggrieved person becomes entitled to seek a remedy. It further held that in employment contracts the cause of action arises on breach and remains alive while the contract subsists, and that after termination an employee may sue for all accrued benefits. Since the claimant retired on 31 December 2011 and filed suit on 7 November 2014, about two years and ten months later, the suit was not statute barred. The jurisdictional objection, resting solely on limitation, also failed. The preliminary objection was dismissed with costs. The main claim remains for determination.

Key legal issues

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01

Whether the suit is statute barred under section 90 of the Employment Act

Holding

The suit was filed about two years and ten months after the claimant's retirement and is not statute barred; in employment contracts the cause of action arises on breach and remains alive during the contract's subsistence.

Reasoning

The court adopted definitions of cause of action from Letang v Cooper and Drummond Jackson, holding that a cause of action arises when the aggrieved person becomes entitled to seek remedy. In employment contracts it arises on breach and continues while the contract subsists. Since the claimant retired on 31.12.2011 and filed suit on 7.11.2014, within three years, the claim was timely under section 90 of the Employment Act.

p. 2
02

Whether the court lacks jurisdiction

Holding

Having found the suit not statute barred, the jurisdictional objection, which rested solely on limitation, failed.

Reasoning

The only basis advanced for the objection on jurisdiction was that the suit was statute barred. Once the court found the suit was filed within the three-year period under section 90 of the Employment Act, the foundation of the jurisdictional objection fell away, and the court concluded it had jurisdiction to determine the suit.

p. 2

Legal principles established

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  • A cause of action is a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.
  • In employment contracts, a cause of action arises on breach and remains alive while the contract subsists; after termination the employee may sue for all accrued benefits.
  • A suit filed within three years of termination of employment is not statute barred under section 90 of the Employment Act.

Court orders

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  1. 1.The preliminary objection dated 30.10.2019 is dismissed with costs.

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap 22)section 4(1)

Cases cited (4)

  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Kalpana Rawal & another v Judicial Service Commission & another
    [2016] eKLR
  • Letang v Cooper
    [1964] 2 All ER 929
  • Drummond Jackson v Britain Medical Association
    [1970] 2 WLR 688
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations matters; suit founded on contract of service dated 17.7.2000 (jurisdiction contested only via limitation)

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, "Mark Gori Adoo v Pan Affrican Trucks & Equipment (K) Ltd [2020] KEELRC 1145 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1145/eng@2020-04-29

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