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ELRCDismissed· [2021] KEELRC 338 (KLR)

Serah Wairimu Kihara v Nokia Solutions Branch Operations [2021] KEELRC 338 (KLR)

Employment and Labour Relations Court
15 November 2021
NMNzioki wa Makau
1,069 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment claim was dismissed because it was filed too late—waiting for settlement talks does not extend the legal deadline.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 29th June 2021 arguing that the Claimant's suit was barred by Section 90 of the Employment Act, 2007 and ought to be dismissed with costs. The Claimant, a former Core Solution Manager who resigned on 6th July 2017, opposed the objection through written submissions (the Respondent filed none despite directions). She argued that her claim for unreimbursed travelling and duty-related expenses was a continuing injury within the proviso to Section 90, that negotiations commencing around 27th June 2019 stopped time from running, and that it would be unjust to penalise an employee who pursued amicable settlement. She relied on George Hiram Ndirangu v Equity Bank Limited and Samuel Otiende Lukoko v Shiners Girls High School. The court reproduced Section 90, which requires employment suits to be brought within three years of the act, neglect or default, or within twelve months of cessation of a continuing injury. The court held that the cause of action accrued on resignation on 6th July 2017; the wages claim ought to have been filed by 5th July 2018 and any other claim by 5th July 2020. Some claimed expenses dated from 2009 to 2013. Prolonged negotiation of allowances showed a lack of diligence and did not suspend limitation. The claim was stale and unfit to be entertained. Noting the Respondent's non-compliance with the directions on submissions, the court dismissed the suit but made no order as to costs, each party bearing their own costs.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The claim was time-barred; the cause of action accrued on resignation on 6th July 2017 and the suit, filed after negotiations beginning around 27th June 2019, was outside the limitation window

Reasoning

Section 90 requires suits arising from employment or contract of service to be brought within three years, or twelve months from cessation of a continuing injury. The court found the cause accrued on resignation in July 2017. Some claimed expenses related to 2009-2013. Negotiations did not stop time, and prolonged negotiation of allowances lacked diligence. The claim was therefore stale and could not be entertained.

p. 2
02

Continuing injury doctrine

Holding

The court implicitly rejected the Claimant's submission that non-reimbursement of expenses was a continuing injury keeping the claim alive; the injury did not extend the limitation period

Reasoning

The Claimant relied on authority to argue that failure to reimburse expenses was a continuing injury not yet ceased. The court did not adopt this reasoning, instead dating accrual to the resignation and treating the claims for expenses incurred in 2009-2013 as stale. Negotiations were viewed as lacking diligence rather than as tolling limitation.

p. 2

Legal principles established

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  • Under Section 90 of the Employment Act, a claim based on contract of service must be commenced within three years of the act, neglect or default, or within twelve months of the cessation of a continuing injury; negotiations do not suspend limitation

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.Each party to bear their own costs (no orders as to costs)

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenyanot specified
  • Employment and Labour Relations Actnot specified

Cases cited (2)

  • George Hiram Ndirangu v Equity Bank Limited
    [2015] eKLR
  • Samuel Otiende Lukoko v Shiners Girls High School
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (suit based on contract of service); limitation governed by Section 90 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Serah Wairimu Kihara v Nokia Solutions Branch Operations [2021] KEELRC 338 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/338/eng@2021-11-15

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