Lucas O Odonya v Kenya Railways Corporation [2021] KEELRC 430 (KLR)

The Claimant was retrenched by Rift Valley Railways on 1st April 2008 and reverted to Kenya Railways Corporation for payment of his retrenchment package and retirement benefits. Section 87(b) of the Kenya Railways Corporation Act imposes a 1-year limitation period for claims against the Corporation, replicating similar provisions in other State Corporations legislation such as Section 66 of the Kenya Ports Authority Act. The Claim filed on 19th February 2014 fell far outside that period.

Section 90 of the Employment Act bars employment claims not filed within 3 years from when the cause of action arose. The retrenchment on 1st April 2008 gave rise to the cause of action. Relying on the Court of Appeal decision in Rift Valley Railways v Hawkins Wagunza Musonye, the Court found the Claim was a single act of termination, not a continuing injury, and the Claimant did not specify when any injury ceased. The objection under Section 90 was therefore upheld.

The Claimant argued the Respondent did not plead limitation in the Statement of Response and could not benefit from an unpleaded defence. The Court rejected this, holding that jurisdiction cannot be assumed merely because an objection was not raised from the outset, and that such objections may be raised at any time before judgment. This aligns with the settled position that jurisdiction goes to the root of the court's competence to determine the dispute.

The Claimant argued unpaid terminal dues constituted a continuing injury. The Court found the prayers sought were principally terminal benefits under the Employment Act and the CBA, arising from a single act of retrenchment. Adopting the Court of Appeal's reasoning, it held the Claimant had not specified when any injury or damage ceased for purposes of computing limitation, and was not convincing on continuing injury.