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ELRCStruck OutNot stated in judgment (consolidated suits)· [2020] KEELRC 1565 (KLR)

Jones Ongaga Monyoncho & another v Riley Falcon Security Service Limited [2020] KEELRC 1565 (KLR)

Employment and Labour Relations Court
13 February 2020
MMM. Mbaru
875 words in judgment
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The bottom line

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Kenya's Employment Court struck out dismissal claims filed four years late, confirming the three-year filing deadline runs even while criminal charges are pending.

What this practically means

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Executive summary

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Two consolidated claims by former security guards against Riley Falcon Security Services Limited came before the Employment and Labour Relations Court at Nakuru on the respondent's notice of preliminary objection dated 26th November 2019, contending that the claims were time barred under section 90 of the Employment Act, 2007. The claimants, employed as security guards, alleged unfair termination; they were arrested following a robbery at a site they were guarding on 28th August 2010, remained in custody, and were acquitted in Nakuru Chief Magistrates Criminal Case No.4461 of 2010 on 7th July 2014. They filed the memorandum of claim on 17th December 2014. The respondent maintained that employment ceased in 2010, not 2014. At the oral hearing, fixed by consent, only the respondent attended and made submissions. The court, M. Mbaru J, held that section 90 imposes a mandatory limitation of three years (twelve months for continuing injury), that time expired on 27th August 2013, and that the pendency and outcome of criminal proceedings neither bar nor suspend civil employment claims, citing Regent Management Limited v Ojiambo Oundo. Finding the objections merited, the court struck out the suits as time barred and ordered each party to bear their own costs. Judgment was delivered at Nakuru on 13th February 2020.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claims filed on 17th December 2014, the claimants having last worked on 28th August 2010, are time barred

Reasoning

The court held section 90 is mandatory: claims must be filed within 3 years of the cause of action. The claimants last worked on 28th August 2010, so time expired on 27th August 2013. Filing on 17th December 2014 after acquittal in the criminal case was beyond the limitation period. The pendency of criminal proceedings does not suspend the running of time for civil employment claims.

p. 2
02

Effect of criminal proceedings on civil employment claims

Holding

Criminal proceedings are no bar to civil proceedings on the same facts

Reasoning

Relying on the Court of Appeal in Regent Management Limited v Wilberforce Ojiambo Oundo, the court held that an employee need not await the outcome of criminal proceedings before challenging a dismissal. The claimants' choice to wait for the acquittal before filing did not extend the limitation period under section 90.

p. 2

Legal principles established

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  • Section 90 of the Employment Act imposes a mandatory limitation of 3 years for employment claims, or 12 months where there is a continuing injury
  • Pending criminal proceedings do not bar or extend the time for filing a civil employment claim

Court orders

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  1. 1.The suits filed by the claimants are time barred and are struck out
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 74

Cases cited (5)

  • Michael Akoko Mbero versus Kenya Revenue Authority
    [2018] eKLR
  • Regent Management Limited versus Wilberforce Ojiambo Oundo
    [2018] eKLR
  • Geoffrey Kiragu Njogu vs. Public Service Commission & 2 others
    [2015] eKLR
  • Attorney General & another vs. Andrew Maina Githinji & another
    [2016] eKLR
  • Iyego Farmers' Co-operative Sacco versus Kenya Union of Commercial Food and Allied Workers
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under 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, "Jones Ongaga Monyoncho & another v Riley Falcon Security Service Limited [2020] KEELRC 1565 (KLR)", Case Analysis (2020). Not stated in judgment (consolidated suits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1565/eng@2020-02-13

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