Tourism Promotion Services (Management) Limited v Charles Otieno Ogada [2021] KEELRC 2272 (KLR)
The bottom line
#Kenya's Employment Court ruled that unpaid employee loans are debts recoverable within six years, not claims that expire after twelve months.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's claim is statute-barred under Section 90 of the Employment Act, 2007 as a continuing injury
The claim is not statute-barred; the loans, M-pesa advances and salary advances give rise to contractual obligations to repay, not continuing injuries
The court considered the definition of continuing injury from Black's Law Dictionary and whether the unauthorized loans, M-pesa advances and salary advances constituted continuing injuries. It concluded they did not; they create contracts for repayment binding on the respondent even after termination of employment. The Act targets wrongs arising from employment relationships, not debts, so the claim was filed within time.
Whether the Court has jurisdiction to hear and determine the claim
Having found the claim not time-barred, the Court has jurisdiction under Section 12 of the Employment and Labour Relations Act
The respondent argued that if the claim were time-barred the court would be robbed of jurisdiction. Since the court found the claim was not statute-barred, the jurisdictional objection fell away, and the court held itself clothed with the requisite jurisdiction under Section 12 of the Employment and Labour Relations Act to hear and determine the claim.
Whether the Application dated 11th August, 2019 is merited
The application is devoid of merit and was dismissed with costs
The court found that the claim was not time-barred and that it had jurisdiction. It followed that the application seeking striking out of the claim and the award of costs lacked merit and had to be dismissed with costs to the claimant.
Legal principles established
#- Debts arising from employer-employee financial arrangements do not constitute continuing injuries under Section 90 of the Employment Act; Section 90 refers to wrongs arising out of an employment relationship, not debts
- Where a claim is not statute-barred, the court retains jurisdiction under Section 12 of the Employment and Labour Relations Act to hear and determine it
- If there is a continuing injury or damage, limitation is capped at 12 months from the cessation thereof
Court orders
#- 1.The Respondent/Applicant's Notice of Motion Application dated 11th August 2019 is dismissed
- 2.Costs of the Application awarded to the Claimant
- Jurisdiction invoked
- Sections 12 and 90 of the Employment and Labour Relations Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tourism Promotion Services (Management) Limited v Charles Otieno Ogada [2021] KEELRC 2272 (KLR)", Case Analysis (2021). Cause No. 14 of 2019 (Formerly CMCC No. 4431 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2272/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.