Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutMemorandum of Claim dated 29th March 2017 (filed 24th April 2017)· [2023] KEELRC 105 (KLR)

Mboe & another v Masai Mara Sopa Lodge Ltd (Cause 764 of 2017) [2023] KEELRC 105 (KLR)

Employment and Labour Relations Court
20 January 2023
SRStella Rutto
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

An employee who sued over salary deductions lost because he filed his claim more than 12 months after his full salary was restored.

What this practically means

#

Executive summary

#
Two former employees of the respondent lodged a claim seeking refund of salary deducted from them between March 2015 and January 2016, when the respondent effected pay cuts of 20% (later reduced to 10%) citing an economic downturn in the tourism industry caused by negative travel advisories and terrorism. The 1st claimant's case was dismissed on 22nd June 2022 for want of prosecution, leaving only the 2nd claimant's claim. The 2nd claimant, who earned a basic salary of Kshs 441,956.00, testified that the pay cut was decided at a management meeting without consultation with employees, and that the respondent later refunded still-serving employees. The respondent, through its Chief Operating Officer, maintained that the pay cut was consensual, aimed at avoiding retrenchment, and that the claimant acquiesced and executed a clearance certificate confirming full dues. The respondent also argued the claim was a continuing injury caught by the 12-month limitation period in section 90 of the Employment Act. Framing three issues, the court found the claim was in the nature of a continuing injury that ceased when the claimant's full salary was restored in January 2016; time ran for twelve months until January 2017, but the suit was filed on 24th April 2017, outside the limitation period. Guided by the Court of Appeal in G4S Security Services and by Thuranira Karauri, the court held that limitation goes to jurisdiction, declined to determine the merits of the pay cut's lawfulness, struck out the claim as time barred, and ordered each party to bear its own costs.

Key legal issues

#
01

Whether the claim for refund of salary deducted between March 2015 and January 2016 was statute barred under section 90 of the Employment Act

Holding

Yes. The pay cut was a continuing injury which ceased in January 2016 when the claimant's full salary was restored; time ran for 12 months until January 2017, and the suit filed on 24th April 2017 was out of time.

Reasoning

The court characterized an unlawful salary deduction as a continuing injury, a wrong committed continuously over time. Under the proviso to section 90 of the Employment Act, such a claim must be lodged within twelve months of cessation of the injury. Cessation here occurred when the claimant's full salary was restored in January 2016. The claim, filed on 24th April 2017, fell outside the 12-month window and was statute barred.

p. 3
02

Consequence of the statute bar on the court's jurisdiction

Holding

The court lacks jurisdiction to determine a statute-barred claim and must decline to adjudicate further.

Reasoning

Relying on Thuranira Karauri v Agnes Ncheche, the court held that limitation goes to jurisdiction. Once the claim was found to be time barred, the court had to down its tools. It therefore struck out the claim without reaching the merits of whether the pay cut was lawful or whether the defences of waiver and acquiescence applied.

p. 4

Legal principles established

#
  • A claim for a continuing injury under section 90 of the Employment Act must be filed within twelve months of the cessation of the injury, cessation occurring when the breach is halted or the employment relationship ends.
  • Limitation of time goes to the jurisdiction of the court; a statute-barred claim cannot be entertained.

Court orders

#
  1. 1.The Claim filed on 24th April 2017 is struck out for being time barred
  2. 2.Each party shall bear its own costs

Authorities

#

Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Kenya County Government Workers Union v Wajir County Government & another
    [2020] eKLR
  • Fredrick Ouma v Spectre International Ltd
    [2013] eKLR
  • 748 Air Services Limited v Theuri Munyi
    (2017) eKLR
  • Sita Steel Rolling Mills Limited vs Jubilee Insurance Company Limited
    (2007) eKLR
  • Lawrence Omondi v Creative Eye Limited
    [2015] eKLR
  • James Wathigo v Lesukut Limited
    [2019] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Thuranira Karauri v Agnes Ncheche
    [1997] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes under the Employment Act; court found it lacked jurisdiction because the claim was statute barred under section 90 of the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mboe & another v Masai Mara Sopa Lodge Ltd (Cause 764 of 2017) [2023] KEELRC 105 (KLR)", Case Analysis (2023). Memorandum of Claim dated 29th March 2017 (filed 24th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/105/eng@2023-01-20

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