Ondiek v Peter Gougus & Alice Chemirmir t/a Nakuru Teachers Training College (Cause 78 of 2015) [2022] KEELRC 1328 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether salary and leave allowance arrears constitute a continuing injury or damage under Section 90 of the Employment Act
Monthly salary and annual leave allowance arrears are continuing injury/damage; the claim had to be filed within 12 months of the cessation (termination in March 2012)
The court applied Black's Law Dictionary definitions of continuing damage and continuing injury, holding that salary payable monthly and leave allowance payable yearly became due at those intervals, so non-payment was ongoing. It aligned itself with G4S Security Services and Radido J in David Ngala Ochieng', and declined to follow Onyango J's view on underpayments as not directly on point. Filing in March 2015, three years after termination, was out of time.
Whether the gratuity claim could survive striking out
The gratuity claim was dismissed as unquantified and unsupported by any written contract or evidence of willingness by the employer to pay
Gratuity is discretionary absent a written contract; both parties pleaded there was no written contract of service and the Respondents denied liability. The court invoked Section 3(1)(2) of the ELRC Act to resolve the dispute justly, expeditiously and proportionately rather than leave a hopeless claim pending.
Legal principles established
#- Contractual benefits which accrue at the end of each month, such as monthly salary, amount to continuing injury for purposes of the law of limitation under Section 90 of the Employment Act
- A preliminary objection on jurisdiction must be dealt with at the earliest opportunity before any further steps in the cause
Court orders
#- 1.The entire claim by the Claimant is struck out
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act (court admitted jurisdiction in paragraph 28 of the memorandum of response; objection raised under Section 90 of the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondiek v Peter Gougus & Alice Chemirmir t/a Nakuru Teachers Training College (Cause 78 of 2015) [2022] KEELRC 1328 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1328/eng@2022-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.