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ELRCDismissedCause No. 127 of 2020 (appeal against ruling in Kisumu Chief Magistrate's Court)· [2022] KEELRC 728 (KLR)

Gilbert Otieno Okite v Kenya Sugar Research Foundation (Affiliated In Kenya Agricultural Research Livestock Organization [2022] KEELRC 728 (KLR)

Employment and Labour Relations Court
24 February 2022
CBChristine N. Baari
2,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a retired employee's compensation claim filed ten years after retirement, confirming employment claims must be filed within three years.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a ruling of the Kisumu Chief Magistrate's Court dated 25 June 2021, which upheld a preliminary objection and struck out the Appellant's employment claim (Cause No. 127 of 2020) as res judicata. The claim sought notice pay, compensation for unlawful termination, and various allowances arising from the Appellant's retirement in the public interest on 21 April 2010. The Appellant argued the prior High Court suit (Civil Case No. 146 of 2010) never determined the employment issues for want of jurisdiction. On a first appeal, the judge re-evaluated the evidence. On res judicata, she accepted that the first three elements under Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai test were met, but held the last two elements failed: the High Court, per Justice Chemitei as recorded by Justice Kiage on appeal, never determined the employer-employee issues, so they were not heard and finally determined. The Trial Court's res judicata finding was set aside. On limitation, the judge held the cause of action accrued on 21 April 2010, and the claim filed on 29 September 2020 was caught by the three-year period in Section 90 of the Employment Act, 2007, which is mandatory and incapable of enlargement; leave to extend time could not cure the lapse. The claim was found statute barred, the striking out was upheld, and the appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the claim was res judicata

Holding

Not res judicata; the High Court, for want of jurisdiction, never determined the employment issues, so the former suit's issues were not heard and finally determined

Reasoning

Both elements of the res judicata test in Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai elements were largely met, but the last two elements failed. Justice Kiage on appeal recorded that Justice Chemitei did not determine any question concerning the employer-employee relationship, having held those issues lay only in the Labour Relations Court. Issues never conclusively determined cannot bar a subsequent suit.

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02

Whether the claim was time barred under Section 90 of the Employment Act, 2007

Holding

The claim was statute barred; it was filed in 2020, ten years after the cause of action accrued on 21/4/2010, and the three-year limitation cannot be enlarged

Reasoning

The cause of action accrued when the employee received the retirement-in-the-public-interest letter on 21/4/2010. Section 90 requires employment claims to be filed within three years. The section is in mandatory terms, and the Court of Appeal has held there is no room to extend time under it. Leave to enlarge time granted elsewhere does not cure the lapse.

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Role of the court on first appeal

Holding

The court on a first appeal must re-assess and re-evaluate the entire evidence and arrive at its own conclusions

Reasoning

Relying on Musera v Mwechelesi & Another, the judge held that although an appellate court should be slow to interfere with a trial judge's findings, it may do so where there was no evidence to support the findings or the trial judge misunderstood the weight and bearing of the evidence and arrived at an unsupportable conclusion.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is in mandatory terms and the three-year limitation period it prescribes is not elastic and cannot be enlarged by leave
  • In an employment claim, the cause of action accrues on the date of the termination/retirement letter, from which date limitation begins to run
  • For res judicata to apply, the former issue must have been heard and finally determined by a competent court; issues referred to another forum for want of jurisdiction were not determined

Court orders

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  1. 1.Setting aside the Trial Court's finding that the claim is res judicata
  2. 2.Finding the claim statute barred and upholding the striking out of the claim dated 28th September 2020
  3. 3.Dismissing the appeal with costs to the Respondent
On appeal from
Kisumu Chief Magistrates Court
Cause Number 127 of 2020
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (employment claim under Cause No. 127 of 2020)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gilbert Otieno Okite v Kenya Sugar Research Foundation (Affiliated In Kenya Agricultural Research Livestock Organization [2022] KEELRC 728 (KLR)", Case Analysis (2022). Cause No. 127 of 2020 (appeal against ruling in Kisumu Chief Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/728/eng@2022-02-24

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