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ELRCDismissedELRC Cause No E026 of 2022 (cause number not printed; referenced as 'ELRC cause No E026' in the motion)· [2023] KEELRC 368 (KLR)

Okwirry v Honda Motorcycle Kenya Limited (Cause E026 of 2022) [2023] KEELRC 368 (KLR)

Employment and Labour Relations Court
16 February 2023
CBChristine N. Baari
2,181 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can sue your former employer where you worked, not where its head office sits, and dismissal claims last three years.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu determined a notice of motion dated August 4, 2022 by Honda Motorcycle Kenya Limited seeking transfer of the claimant's employment cause from Kisumu to Nairobi, together with a preliminary objection seeking striking out of the claimant's prayers b and c (salary for days worked from 2nd to March 6, 2020, and leave allowance for 28.5 days) as time barred under section 90 of the Employment Act. The applicant argued that under section 15 of the Civil Procedure Act suits lie where the defendant has its principal office, which it placed in Nairobi, and relied on case law asserting that claims for salary accruing monthly amount to continuing injuries subject to a twelve-month limitation. The claimant countered that he was stationed at the Kisumu branch, the cause of action arose there, the suit was filed within three years of his March 6, 2020 dismissal, and that transfer would prejudice him as an unemployed person. The court held that section 15 does not oust Kisumu's jurisdiction where the cause of action arose at a branch office, that the balance of convenience favoured the claimant, and that online hearings negated any expense prejudice. Guided by the Court of Appeal's decision in Mary Kitsao Ngowa v Krystalline Limited, it held that claims arising from termination are not continuing injuries, so the three-year limitation applied and the claim was in time. Both the motion and the preliminary objection were dismissed with costs.

Key legal issues

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01

Territorial jurisdiction and place of instituting the suit

Holding

The suit was properly instituted at Kisumu since the cause of action arose at the respondent's branch offices in Kisumu; transfer to Nairobi was unmerited

Reasoning

The court applied section 15 of the Civil Procedure Act, including Explanation (2) which deems a corporation to carry on business where a cause of action arising at a subordinate office arises. The applicant never disputed that the claimant was stationed at the Kisumu branch and that the cause of action arose there. The balance of convenience favoured the unemployed claimant, and online hearings negated any claimed expense prejudice.

p. 4
02

Whether prayers for unpaid salary and leave allowance are a continuing injury barred under section 90 of the Employment Act

Holding

They are not a continuing injury; the claims accrued on dismissal on March 6, 2020 and the suit filed May 30, 2022 was within the three-year limitation period

Reasoning

Relying on Mary Kitsao Ngowa & 36 others v Krystalline Limited, the court held that a continuing injury presumes a continuing employment engagement. Since the employment relationship had been severed by the dismissal, claims arising from termination are not continuing injuries and the twelve-month rule does not apply; the three-year period from dismissal governs.

p. 5

Legal principles established

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  • Section 15 of the Civil Procedure Act does not oust a court's territorial jurisdiction where the cause of action arose, wholly or in part, merely because the defendant's principal office is elsewhere
  • A claim arising from termination of employment is not a continuing injury under section 90 of the Employment Act; limitation runs from the date of dismissal

Court orders

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  1. 1.The notice of motion dated August 4, 2022 seeking transfer of the suit to ELRC Nairobi is dismissed
  2. 2.The notice of preliminary objection dated August 4, 2022 seeking striking out of prayers b and c is dismissed
  3. 3.Both the application and the preliminary objection are dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure Actsection 15
  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)

Cases cited (7)

  • EKM v PKM
    (2021) eKLR
  • Abid Hashim v Anthony Kihonge Muhia
    (2008) eKLR
  • David Ngala Ochieng v Hatari Security Guards Ltd
    (2022) eKLR
  • Mohamed Abu Ali v Kenya Power & Lighting Co Ltd
    (2000) eKLR
  • Hilarion Mwabalo v Kenya Commercial Bank
    (2013) eKLR
  • Mary Kitsao Ngowa & 36 others v Krystalline Limited
    (2015) eKLR
  • Red Anchor Freight Forwarders Ltd v David Nthiwa Wambua
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act, read with section 15 of the Civil Procedure Act (Cap 24) and section 90 of the Employment Act

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, "Okwirry v Honda Motorcycle Kenya Limited (Cause E026 of 2022) [2023] KEELRC 368 (KLR)", Case Analysis (2023). ELRC Cause No E026 of 2022 (cause number not printed; referenced as 'ELRC cause No E026' in the motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/368/eng@2023-02-16

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