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ELRCDismissedNot stated in the judgment· [2021] KEELRC 943 (KLR)

Leonard Munyao Mutua v Security Guards Services Limited [2021] KEELRC 943 (KLR)

Employment and Labour Relations Court
29 September 2021
CBChristine N. Baari
2,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee's unfair dismissal claim was thrown out because he filed it over three years after his dismissal — waiting for a criminal case to end didn't pause the deadline.

What this practically means

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Executive summary

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The Claimant, formerly an employee of the Respondent confirmed in 1998 as a supervisor earning Kshs. 18,000/- gross, alleged he was entrusted with banking duties. He claimed he was wrongly accused of stealing Kshs. 82,360/-, coerced into admitting liability, charged with four criminal offences (forgery, stealing by servant, making a document without authority and uttering a document with intent to defraud) and later acquitted. He sought legal expenses, salary, terminal benefits, severance pay, aggravated and general damages, costs and interests. The Respondent, through its Accounts Manager Virginia Wanjiru Chege, contended the Claimant was a rider who failed to bank monies entrusted to him, presented a fake deposit slip, was lawfully summarily dismissed on 17th June 2009 after a disciplinary process, and that the suit was time-barred under Section 90 of the Employment Act, 2007. The court framed three issues: limitation, wrongful dismissal, and remedies. It held the cause of action accrued on 17th June 2009 upon dismissal, evidenced by the stopped salary, the Claimant's failure to return to work, and his signing for pension in October 2009. The criminal proceedings neither suspended nor extended the limitation period. Filed 4 years and 5 months late, the suit was statute-barred; the court, citing Owners of the Motor Vessel 'Lillian S', held it lacked jurisdiction and declined to determine the remaining issues. The suit was dismissed with each party bearing own costs, and the file ordered transmitted to Nairobi.

Key legal issues

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01

Whether the suit was filed outside the statutory limitation period

Holding

Yes. The cause of action arose on 17th June 2009 upon dismissal; the suit filed on 28th November 2013 was 4 years and 5 months late and is statute-barred under Section 90 of the Employment Act, 2007, depriving the court of jurisdiction.

Reasoning

The court found the Claimant knew of his dismissal on 17th June 2009 as he never returned to work, his salary was stopped, and he signed for his pension in October 2009. Neither the pending criminal case nor the acquittal on 30th May 2013 extended the limitation period, since criminal and civil proceedings are separate. Even as a continuing injury, the 12-month period had elapsed.

p. 4
02

Whether the dismissal was wrongful

Holding

Not determined; the issue fell away with the finding on limitation.

Reasoning

Having found the suit statute-barred and the court devoid of jurisdiction, the court held the remaining issues were not worthy of determination and fell by the wayside.

p. 4

Legal principles established

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  • A cause of action in employment accrues upon dismissal, not upon the conclusion of related criminal proceedings; the criminal case is a separate proceeding.
  • Where a court lacks jurisdiction by reason of limitation, it has no option but to down its tools.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Parties shall bear their own costs of the suit
  3. 3.The Deputy Registrar is ordered to transmit this file to Nairobi upon delivery of this judgment

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 44
  • Limitation of Actions ActSection 4(1)

Cases cited (7)

  • Anthony Mkala Chitavi v Malindi Water & Sewarage Co. Ltd
    (2013) eKLR
  • Clement Mutiso Muinde v British American Insurance Company Limited
    (2013) eKLR
  • George Hiram Ndirangu v Equity Bank Limited
    (2015) eKLR
  • Dominciano Kinyua Magambo & 5 others v Invesco Insurance Company Limited
    (2016) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Attorney General & another v Andrew Maina Githinji and another
    [2016] eKLR
  • Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd
    (1989) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90 raised on limitation)

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, "Leonard Munyao Mutua v Security Guards Services Limited [2021] KEELRC 943 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/943/eng@2021-09-29

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