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ELRCStruck OutCause No E101 of 2022· [2023] KEELRC 412 (KLR)

Otieno v Kenya Revenue Authority (Cause E101 of 2022) [2023] KEELRC 412 (KLR)

Employment and Labour Relations Court
16 February 2023
BMB. O. M. Manani
1,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employees must sue for unfair termination within three years of dismissal date, and pending criminal cases don't pause that deadline.

What this practically means

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Executive summary

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The claimant, employed by the respondent from February 10, 2008, was placed on interdiction around October 2013 and charged with criminal offences of theft and fraud. His employment was terminated by letter dated July 16, 2014, while the criminal case was pending. He was acquitted in March 2019 and in February 2022 instituted this suit seeking declarations that the termination was unlawful together with compensatory reliefs. The respondent filed a preliminary objection contending the suit was filed outside the three-year period in section 90 of the Employment Act and that the court therefore lacked jurisdiction. The claimant argued the cause of action accrued on March 21, 2019, when the criminal case ended, because the interdiction was to run until conclusion of the criminal case. The court, per Manani J, rejected this, holding that the cause of action in unfair termination claims accrues on the date of termination, and that the claimant's own pleadings anchored the claim on the July 16, 2014 termination. The court distinguished David Muthui Ndegwa, which concerned interdiction exceeding a three-month HR Manual limit, and relied on authority that ongoing criminal proceedings or settlement negotiations do not suspend limitation time. Even measuring accrual from the end of interdiction, interdiction was replaced by the termination decision on the same date. Holding the suit time barred, the court struck it out with costs to the respondent.

Key legal issues

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01

When cause of action accrues in unfair termination claims

Holding

The cause of action accrues on the date of termination of employment, not on the conclusion of related criminal proceedings or expiry of interdiction

Reasoning

The court held that the termination itself is the act or omission vesting the right to seek redress. The claimant himself anchored his claim on the July 16, 2014 termination. Reliance on David Muthui Ndegwa was misplaced as that case concerned interdiction exceeding an HR Manual limit, not termination. Even measuring from the end of interdiction, the date remains July 16, 2014 since interdiction was replaced by the termination decision on that date.

p. 2
02

Effect of section 90 of the Employment Act on the claim

Holding

The claim, filed in February 2022 over a July 2014 termination, was time barred and was struck out

Reasoning

Section 90 requires claims within three years. The suit was filed about eight years after termination, far outside the window. Neither pending criminal proceedings nor settlement negotiations toll time. The objection to jurisdiction on limitation grounds therefore succeeded and the entire suit was struck out with costs.

Legal principles established

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  • In causes of action based on unfair termination, time starts to run from the date of the decision to terminate the contract of service
  • Ongoing criminal proceedings against the employee do not stop limitation time from running

Court orders

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  1. 1.The suit is struck out with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 90
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Vipingo Ridge Limited v Swalehe Ngonge Mpitta
    [2022] eKLR
  • David Muthui Ndegwa v Director of Public Prosecutions and another
    (2020) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Kabiri v Haco Industries Kenya Limited
    (Civil Appeal 204 of 2018) [2022] KECA 666 (KLR)
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; objection premised on 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, "Otieno v Kenya Revenue Authority (Cause E101 of 2022) [2023] KEELRC 412 (KLR)", Case Analysis (2023). Cause No E101 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/412/eng@2023-02-16

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