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ELRCPartially AllowedCause No 432 of 2018· [2021] KEELRC 1256 (KLR)

Norah Ndila Ngutu (Suing as the Legal Representative of the Estate of Jackson Waita Ivulu) v Southern Cross Safaris Limited & 2 others [2021] KEELRC 1256 (KLR)

Employment and Labour Relations Court
16 July 2021
BOByram Ongaya
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an estate's employment claim against one employer because it was filed years too late, showing time limits are enforced strictly.

What this practically means

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Executive summary

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The claimant, on behalf of the estate of Jackson Waita Ivulu (Deceased), sued three respondents claiming general damages for malicious prosecution, terminal dues of Kshs. 2,252,771.00, a declaration that the termination was unlawful, costs and interest. The claimant alleged the deceased was employed as a Driver Guide from 2006, was charged with stealing by servant in July 2011 at the behest of the 1st respondent, was suspended on 27.07.2011 without pay, and was acquitted on 13.09.2016 under section 215 of the Criminal Procedure Code. The 1st respondent admitted employment only from 15.01.2006 (or 14.08.2006) to 15.01.2008, ending in redundancy; the 2nd respondent (Attorney General) justified the prosecution on reasonable suspicion; and the 3rd respondent, Satao Camps Limited, admitted employing the deceased from 08.02.2011 and terminating him on 29.07.2011, and raised a preliminary objection that the claim against it was time barred under section 90 of the Employment Act, 2007. The Court upheld the objection, holding that parties are bound by their pleadings, that the employment relationship with the 3rd respondent ended in July 2011, and that even treating the salary arrears claim as a continuing injury running to November 2016, the claim filed on 17.12.2019 was outside both the 12-month and 3-year limitation periods. The suit against the 3rd respondent was dismissed with each party bearing its own costs of the preliminary objection and that suit; the claim against the 1st and 2nd respondents was not disturbed by this ruling.

Key legal issues

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Limitation of the employment claim against the 3rd respondent

Holding

The suit against the 3rd respondent, filed on 17.12.2019, was time barred whether measured from the July 2011 separation (3-year general limitation) or from November 2016 (12-month continuing injury), and no sufficient explanation for the delay was given.

Reasoning

The pleadings established that the employment with the 3rd respondent ended with the suspension effective 27.07.2011. Even treating the unpaid salary claim as a continuing injury running to November 2016, the claim should have been filed by 01.12.2017. The acquittal on 13.09.2016 meant the employee knew of the suspension, yet no claim was brought until the amendment of 17.12.2019. The demand letter of 17.12.2016 was addressed to the 3rd respondent but it was not initially sued.

p. 2

Legal principles established

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  • Parties are bound by their own pleadings as to when the employment relationship ended
  • Section 90 of the Employment Act fixes limitation at 3 years generally and 12 months for a continuing injury

Court orders

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  1. 1.The 3rd respondent's preliminary objection upheld - the claimant's suit against the 3rd respondent was time barred per section 90 of the Employment Act and is dismissed
  2. 2.Each party to bear own costs of the preliminary objection and the suit against the 3rd respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Criminal Procedure Codesection 215
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 pleaded 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, "Norah Ndila Ngutu (Suing as the Legal Representative of the Estate of Jackson Waita Ivulu) v Southern Cross Safaris Limited & 2 others [2021] KEELRC 1256 (KLR)", Case Analysis (2021). Cause No 432 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1256/eng@2021-07-16

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