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ELRCStruck OutNot stated in the judgment· [2020] KEELRC 1609 (KLR)

George Ng’ang’a Njihia v East African Botanicals EPZ (Advanced Bio-Extract) Ltd [2020] KEELRC 1609 (KLR)

Employment and Labour Relations Court
14 February 2020
645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim filed nine years after dismissal was struck out because the law gives you only three years to sue.

What this practically means

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Executive summary

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The Claimant, George Nganga Njihia, sued East African Botanicals EPZ (Advanced Bio-Extract) Ltd before the Employment and Labour Relations Court on 26 January 2019, alleging unfair termination, suspension, refusal to reinstate him or pay terminal benefits, and non-payment/remittance of dues and contributions. He pleaded that he was dismissed on 29 September 2010, though he also pleaded suspension on the same date and non-payment of salary for September 2010. The Respondent filed a Notice of Preliminary Objection contending that the suit was defective, bad in law, an abuse of process, and was filed in violation of section 90 of the Employment Act, 2007. The court framed the dispute around accrual of the cause of action and the limitation period. Applying section 90, which requires employment claims to be filed within three years, and adopting the Court of Appeal's reasoning in Attorney General v Andrew Maina Githinji that criminal proceedings are no bar to civil proceedings on similar facts, the court held that the cause of action accrued on 29 September 2010 when the Claimant suffered the legal wrong, not upon his acquittal in the Magistrates' Court on 7 December 2017. Having filed about nine years later, the Claimant's claims were time-barred. The court struck out the Memorandum of Claim with no order on costs on 14 February 2020.

Key legal issues

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01

Accrual of the cause of action and limitation under section 90 of the Employment Act, 2007

Holding

The contractual cause of action accrued on 29 September 2010 when the Claimant suffered the legal wrong; the claim filed about 9 years later was time-barred, and the pendency of criminal proceedings on the same facts did not affect accrual.

Reasoning

Section 90 requires employment claims to be instituted within 3 years of the accrual of the cause of action. Relying on the Court of Appeal decision in Attorney General v Andrew Maina Githinji, the court held that criminal proceedings on the same facts neither bar civil proceedings nor defer accrual. The Claimant had all the facts at dismissal and could have sued then. Filing after about 9 years was outside the prescribed period, and the preliminary objection therefore succeeded.

p. 2

Legal principles established

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  • Institution of criminal proceedings is not a bar to, and does not postpone accrual of, civil proceedings based on similar facts; a cause of action arising from dismissal accrues when the employee suffers the legal wrong, not upon acquittal in a criminal trial

Court orders

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  1. 1.The Memorandum of Claim is struck out
  2. 2.No order on costs

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (1)

  • Attorney General & another v Andrew Maina Githinji & Ar
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; limitation challenged under section 90 of 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, "George Ng’ang’a Njihia v East African Botanicals EPZ (Advanced Bio-Extract) Ltd [2020] KEELRC 1609 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1609/eng@2020-02-14

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