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ELRCPartially AllowedAppeal No 20 of 2022· [2022] KEELRC 1197 (KLR)

Haller Foundation (Baobab Trust) v Mwanzighe & 8 others (Appeal 20 of 2022) [2022] KEELRC 1197 (KLR)

Employment and Labour Relations Court
8 July 2022
BOByram Ongaya
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court threw out a Kshs. 4.4 million overtime and leave award because the workers filed their claim more than three years after leaving their jobs.

What this practically means

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Executive summary

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The appellant employer appealed against a trial court judgment awarding the respondents, former employees on fixed-term contracts, overtime and untaken leave dues of approximately Kshs. 4.4 million, costs and interest. The respondents' claim was that despite an October 2017 conciliation agreement to compensate unpaid leave days as rest days, the appellant terminated their contracts on December 14, 2017 without compensating the leave and overtime in cash, and a November 28, 2018 payment covered only 2017, leaving earlier years unpaid. The appellant defended the claim on the basis that the last fixed-term contracts lapsed by effluxion in 2016, that the suit was time barred under section 90 of the Employment Act, 2007, and that all claims were amicably resolved through conciliation agreements in 2018. On appeal, the court identified the principal issue as whether the suit was time barred, treating it as a jurisdictional question of priority. The court found that the respondents' own pleadings and evidence admitted payment of the 2017 dues, so the claim was for 2016 backwards, a cause of action that accrued by December 31, 2016; alternatively, the overtime and leave claims were continuing injuries that ceased on December 31, 2017, when the claimants opted not to renew their contracts, so the limitation period lapsed by December 31, 2018. The November 2018 payment was not an acknowledgment of the claims sued upon. The court also found the claims were not particularised or proved. Holding that the trial court lacked jurisdiction, the court allowed the appeal and awarded the appellant costs of both the appeal and the suit.

Key legal issues

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01

Whether the suit was time barred under section 90 of the Employment Act, 2007

Holding

Yes; the cause of action for the unpaid overtime and leave (2016 backwards) accrued by December 31, 2016, and even if treated as continuing injuries ceasing December 31, 2017, the limitation period lapsed by December 31, 2018, before the May 21, 2020 filing

Reasoning

The respondents' own pleadings admitted payment of 2017 dues on November 28, 2018, leaving the claim for 2016 backwards, which accrued by December 31, 2016. Alternatively, overtime and leave were continuing injuries ceasing when the fixed-term contracts ended on December 31, 2017, so the 12-month limitation under section 90 lapsed on December 31, 2018. The November 2018 payment was not an acknowledgment of the claims sued upon. The trial court therefore lacked jurisdiction.

p. 4
02

Whether the other grounds of appeal required determination

Holding

No; having found the suit time barred, the court declined to address the remaining grounds

Reasoning

Once jurisdiction of the trial court was found wanting, the appeal succeeded and the trial court's awards were unjustified; consideration of the remaining grounds would serve no purpose.

p. 4
03

Whether the claims were pleaded and proved with sufficient particularity

Holding

No; the particulars of overtime and leave days and amounts were neither pleaded nor proved

Reasoning

The court noted the absence of particulars of the overtime hours and leave days claimed per claimant, and the absence of evidence establishing them, independently supporting the finding that the awards could not stand.

p. 3

Legal principles established

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  • A limitation defence goes to jurisdiction and takes priority in determining an appeal from an employment claim
  • Overtime and leave claims are continuing injuries that ceased when the employment relationship ended, starting the limitation period under section 90
  • A claimant must particularise the specifics of overtime and leave days claimed and prove them by evidence

Court orders

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  1. 1.The appeal is allowed
  2. 2.The respondents to pay costs of the appeal and of the suit in the trial court

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Labour Relations ActNot specified
  • Labour Institutions ActNot specified
  • Employment and Labour Relations Court ActNot specified
On appeal from
Magistrates' Court (trial court)
Not stated in extract
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court (appeal from trial court in employment claim)

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, "Haller Foundation (Baobab Trust) v Mwanzighe & 8 others (Appeal 20 of 2022) [2022] KEELRC 1197 (KLR)", Case Analysis (2022). Appeal No 20 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1197/eng@2022-07-08

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