Anne Nyaweka Muchira v Samburu Sacco Limited [2021] KEELRC 459 (KLR)

Employment and Labour Relations Court

18 November 2021

HWHellen Wasilwa

1,557 words in judgment

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The bottom line

Kenya's Employment Court ruled an employee interdicted since 2006, never fired or reinstated, could still sue because the three-year limitation clock never started.

What this practically means

Executive summary

The claimant, employed by the respondent as a manager on 10 February 1992, was interdicted on 26 November 2006 following a complaint and related criminal charges. She was acquitted on 12 August 2008 under section 210 of the Criminal Procedure Code, and an appeal was dismissed in 2009. She notified the respondent of her acquittal and by a letter of 12 November 2013 sought reinstatement, but the respondent never lifted the interdiction nor issued a termination letter. She filed this claim on 27 April 2015 contending she remained an employee and seeking back wages. The respondent, denying the interdiction letter as a forgery, raised a preliminary objection on 24 June 2021 arguing the claim was statute barred under section 4 of the Limitation of Actions Act read with section 90 of the Employment Act, which the respondent said defeated the Court's jurisdiction. The claimant responded that she had not sued for unfair termination but for determination of her employment status and back wages, and that since the interdiction was never lifted nor her services terminated, the cause of action was still alive; she relied on authorities including Mary Chemweno Kiptui, Jacqueline M Mutiso and David Wekesa Nambafu. The court held that no termination letter was issued and the interdiction was never lifted, so the cause of action arose when the claimant filed suit on 27 April 2015. The preliminary objection was found without merit and dismissed, with costs in the cause. The main claim now proceeds to hearing.

Key legal issues

Limitation of employment claim following non-concluded interdiction

Holding

The claim was not time barred because the interdiction was never lifted nor was the claimant terminated, so time had not begun to run from acquittal or appeal dismissal

Reasoning

The court noted the claimant was interdicted on 26 November 2006 and acquitted on 12 August 2008, with her appeal dismissed in 2009. However, the respondent never lifted the interdiction or issued a termination letter despite the claimant's 2013 request for reinstatement. The claimant filed suit on 27 April 2015 seeking a declaration of employment status and back wages, not unfair termination. The court held the cause of action arose when the claimant concluded the respondent may have terminated her and filed suit.

p. 2

Whether limitation defeats jurisdiction

Holding

Since the claim was not time barred, the jurisdictional objection failed

Reasoning

The respondent argued that a time-barred claim strips the Court of jurisdiction, relying on Justine S. Sunyai V Judicial Service Commission. The court, however, found the limitation contention incorrect on the facts and accordingly found the preliminary objection without merit and dismissed it.

p. 2

Legal principles established

Where an employee is interdicted and never reinstated or issued with a termination letter, the cause of action accrues when the employee treats the employment as terminated and files suit

Court orders

1.Preliminary objection dismissed
2.Costs in the cause

Authorities

Legislation

Limitation of Actions Actsection 4
Employment Actsection 90
Employment Actsection 44(4)(a)
Employment Actsections 41 and 45 (as referenced in quoted authority)
Criminal Procedure Codesection 210

Cases cited (5)

Longonot Horticulture Limited V James Wakaba Maina
[2019] eKLR
Justine S. Sunyai V Judicial Service Commission & Another
[2017] eKLR
Mary Chemweno Kiptui V Kenya Pipeline Company Limited
[2014] eKLR
Jacqueline M Mutiso V Kenya Revenue Authority
[2021] eKLR
David Wekesa Nambafu V Bob Morgan Services Limited
[2020] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act; limitation under section 90 of the Employment Act read with section 4 of the Limitation of Actions Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Anne Nyaweka Muchira v Samburu Sacco Limited [2021] KEELRC 459 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/459/eng@2021-11-18

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