Wekesa v Office of Director of Public Prosecutions & 2 others (Cause E342 of 2022) [2023] KEELRC 767 (KLR)

Employment and Labour Relations Court

28 March 2023

DMD K Njagi Marete

534 words in judgment

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The bottom line

Kenya's Employment Court struck out an unfair termination claim filed more than three years late, rejecting an argument that criminal proceedings extended the legal deadline.

What this practically means

Executive summary

The 3rd Respondent/Applicant moved the court by an application dated July 5, 2022 seeking to strike out the Claimant's claim for unfair termination as time barred under section 90 of the Employment Act, 2007, and to strike out the claim for general damages for alleged malicious prosecution for lack of jurisdiction. The Claimant/Respondent opposed, contending that time only began running after his acquittal in the criminal proceedings on December 2, 2021, and that the prosecution constituted a continuing injury within the penultimate clause of section 90, which extends the limitation period by 12 months after cessation of a persisting injury. In written submissions dated November 14, 2022, he argued the criminal proceedings were the basis of his termination and that the court had jurisdiction. The court found it undisputed that the claim was filed outside the limitation period under section 90. It rejected the continuing-injury argument, holding that the criminal proceedings ending in acquittal were separate and distinct from any employment claim arising from the termination, and that there was no nexus between them and the continuing injury envisaged by section 90. The court described the argument as a mere hideout and held the claimant should have filed within the strict statutory timelines. The application was allowed, with each party bearing their own costs. Judgment was delivered on March 28, 2023 by D K Njagi Marete, Judge.

Key legal issues

Whether the criminal prosecution constituted a continuing injury under section 90 of the Employment Act

Holding

The criminal proceedings were separate from the employment claim; there is no nexus, so time began running from termination and the claim is time barred

Reasoning

The court held that the criminal proceedings culminating in acquittal on December 2, 2021 were distinct from any claim arising out of termination of employment. Marrying the two would not be right. Section 90's continuing-injury clause does not capture separate criminal proceedings, so the claimant should have filed within the statutory timelines.

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Jurisdiction over the claim for general damages for malicious prosecution

Holding

The malicious prosecution claim was to be struck out for lack of jurisdiction

Reasoning

The application sought striking out of the general damages claim for alleged malicious prosecution on the ground that the ELRC lacks jurisdiction over such a claim. The court allowed the application, treating the continuing-injury argument as a mere hideout from the strict statutory timelines.

p. 2

Legal principles established

A claim for unfair termination filed outside the 3-year period under section 90 of the Employment Act is time barred
Criminal proceedings and their acquittal do not constitute a continuing injury under section 90 so as to extend the limitation period for an employment claim

Court orders

1.The application dated July 5, 2022 is allowed
2.The claim for unfair termination is struck out as time barred
3.Each party bears their own costs of the application

Authorities

Legislation

Employment Actsection 90

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007, in particular section 90

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Wekesa v Office of Director of Public Prosecutions & 2 others (Cause E342 of 2022) [2023] KEELRC 767 (KLR)", Case Analysis (2023). Application dated July 5, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/767/eng@2023-03-28

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