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ELRCDismissedEmployment cause memorandum of claim dated 23rd June 2017· [2022] KEELRC 1184 (KLR)

Kayere v Cabinet Secretary Ministry of Environment and Natural Resources & 2 others (Cause 268 of 2017) [2022] KEELRC 1184 (KLR)

Employment and Labour Relations Court
13 July 2022
DNDavid Nderitu
2,969 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a former employee's Kshs.1.2 million salary arrears claim because it was filed too late, confirming strict limitation deadlines.

What this practically means

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Executive summary

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The Claimant, a former employee of the 1st Respondent engaged in 1995 (the Respondents contending employment from 1978), claimed Kshs.1,243,388.75 as balance of salary and miscellaneous allowance arrears, asserting he was underpaid in job grades below his entitlement and should have retired in JG 'N' rather than JG 'M', relying on the order in Nairobi HCCC No.709 of 2003 on salary increments for diploma holders. The Respondents maintained that his grades and pay were harmonised in line with a DPM Circular and the court order, that he retired in JG 'M' on 10th July 2014, and that all his dues of Kshs.558,603.30 were paid in September 2015. The court framed three issues: limitation, entitlement to reliefs, and costs. It held that under Section 90 of the Employment Act and the Limitation of Actions Act, only the final segmented portions of the salary (Kshs.198,720/=) and allowance (Kshs.76,104/=) arrears for 1st July 2012 to 30th June 2014 survived limitation. On the merits, the court found the Claimant retired in JG 'M', was never promoted to JG 'N', bore the burden of proving otherwise and failed, and that promotion is a management function the court will not disturb. It further held the entire claim was time barred as a continuing injury not filed within twelve months of retirement, applying David Ngala Ochieng v Hatari Security Guards Ltd. The cause was dismissed with each party bearing its own costs, delivered virtually at Nakuru on 13th July 2022 by David Nderitu, Judge.

Key legal issues

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01

Limitation of actions in employment claims

Holding

Only salary arrears of Kshs.198,720/= and allowance arrears of Kshs.76,104/= for 1st July 2012 to 30th June 2014 survived the limitation test; all other portions were time barred. Additionally, treating the claim as one of continuing injury, the entire claim was filed outside twelve months of the Claimant's retirement and thus time barred.

Reasoning

Section 90 of the Employment Act prescribes three years for contract of service claims, and twelve months from cessation for continuing injury. The repealed Employment Act had no limitation provision, so pre-2008 claims were governed by the six-year rule under the Limitation of Actions Act. Since the Claimant segmented his claim into period-based portions, time ran separately on each portion. Ultimately the whole claim was also caught by the continuing-injury rule as filed beyond twelve months of retirement.

p. 6
02

Entitlement to salary and allowance arrears premised on alleged entitlement to JG 'N'

Holding

Claim failed; the Claimant retired in JG 'M' and never proved promotion to JG 'N', so arrears premised on JG 'N' were misguided.

Reasoning

The last payslip and a letter of 26th November 2009 confirmed the Claimant retired in JG 'M'. RW1's uncontroverted testimony on career progression was accepted. Promotion depended on vacancy, qualifications and candidates, and no diploma holder was promoted to JG 'N', negating discrimination. Promotion is a management function outside the court's interference, and the payment voucher of 21st September 2015 showed all dues were settled.

p. 6

Legal principles established

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  • Employment claims falling due before 2nd June 2008 were governed by the six-year limitation period under Section 4(1) of the Limitation of Actions Act; thereafter Section 90 of the Employment Act prescribes three years, or twelve months from cessation in cases of continuing injury
  • Segmented salary/allowance arrears claims become due and time starts running on each portion upon accrual (e.g. upon promotion)
  • Promotion of public servants is a human resource management function which the court will not interfere with
  • The burden lay on the Claimant to prove promotion or unfair denial of promotion; none was discharged

Court orders

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  1. 1.All claims by the Claimant which were more than three years old as at filing are dismissed as time barred
  2. 2.The entire cause is dismissed
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap 22)Section 4(1)
  • Employment Act (repealed, Cap 226)
  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 41(1)(2)

Cases cited (1)

  • David Ngala Ochieng v Hatari Security Guards Ltd
    (2022) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Article 41(1)(2) of the Constitution invoked by the Claimant

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, "Kayere v Cabinet Secretary Ministry of Environment and Natural Resources & 2 others (Cause 268 of 2017) [2022] KEELRC 1184 (KLR)", Case Analysis (2022). Employment cause memorandum of claim dated 23rd June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1184/eng@2022-07-13

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