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ELRCPartially AllowedNot stated in the judgment as provided· [2022] KEELRC 1013 (KLR)

David Ngala Ochieng v Hatari Security Guards Ltd [2022] KEELRC 1013 (KLR)

Employment and Labour Relations Court
26 January 2022
RSRadido Stephen
779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 1 August 2012, resigned on 10 January 2016 and on 7 April 2017 sued for breach of contract claiming underpayments, uniform deductions, house allowance, overtime, leave allowance, unremitted statutory deductions and a certificate of service. The Respondent resisted the claim, contending among other things that the monetary claims were time-barred under section 90 of the Employment Act, 2007, which requires suits founded on continuing injury to be filed within 12 months of cessation. The Court applied the Court of Appeal's decision in G4S Security Services (K) Limited v Joseph Kamau & 468 Ors, which held that unpaid dues accruing at the end of each month do not constitute an indefinite continuing injury. Finding that the dues sought accrued monthly, the Court held that the Claimant ought to have moved the Court within 12 months of January 2016 and, having filed more than 15 months after resignation, the monetary heads of claim were caught by the law of limitation. On the unremitted statutory deductions, the Court noted that the NSSF Act and NHIF Act provide remedies the Claimant had not attempted to use. The Court also observed that the Claimant was paid a daily rate incorporating house allowance as contemplated by the Regulation of Wages (General) Order. The only relief granted was an order that the Respondent issue a certificate of service, being a statutory entitlement, within 21 days. The Cause was otherwise dismissed with no order on costs.

Key legal issues

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01

Whether the heads of claim constituted continuing injury under section 90 of the Employment Act, 2007

Holding

The claims were time-barred as they accrued monthly and the suit was filed more than 12 months after resignation on 1 January 2016

Reasoning

Following the Court of Appeal in G4S Security Services (K) Limited v Joseph Kamau & 468 Ors, the Court reasoned that unpaid dues accruing at the end of each month do not constitute an open-ended continuing injury. The proviso to section 90 requires a claim founded on continuing injury to be filed within 12 months of cessation. The Claimant resigned on 10 January 2016 (also referred to as 1 January 2016) and filed on 7 April 2017, more than 15 months later, so the heads of claim were caught by limitation.

p. 2
02

Whether the Claimant was entitled to a certificate of service

Holding

Yes; the Respondent was ordered to issue a certificate of service within 21 days

Reasoning

The Court held that a certificate of service is a statutory entitlement that survives the limitation objections affecting monetary claims. Although the Cause was otherwise dismissed, the Court directed the Respondent to issue the certificate within 21 days, treating it as an ongoing statutory obligation rather than a claim extinguished by limitation.

p. 2

Legal principles established

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  • A contractual benefit which accrues at the end of each month amounts to a continuing injury for purposes of limitation under section 90 of the Employment Act, and claims must be brought within 12 months of cessation of employment.
  • A certificate of service is a statutory entitlement that a former employer must issue.

Court orders

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  1. 1.The Respondent to issue a Certificate of Service to the Claimant within 21 days
  2. 2.The Cause is dismissed with no order on costs

Authorities

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Legislation

  • Employment Actsection 90 (including proviso)
  • National Social Security Fund Actprovisions for dealing with unremitted deductions (not specified)
  • National Hospital Insurance Fund Actprovisions for dealing with unremitted deductions (not specified)
  • Regulation of Wages (General) Orderhouse allowance in daily rate (not specified)

Cases cited (3)

  • Joseph Kamau Nyakarura & 3 Ors v Muhugu Farm Ltd
    (2017) eKLR
  • Samuel Otiende Lukoko v Shiners Girls High School
    (2015) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Ors
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Cause for breach of contract of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "David Ngala Ochieng v Hatari Security Guards Ltd [2022] KEELRC 1013 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1013/eng@2022-01-26

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