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ELRCDismissedNot stated in judgment· [2023] KEELRC 969 (KLR)

Makanda v Inter Security Services Limited (Cause 2065 of 2017) [2023] KEELRC 969 (KLR)

Employment and Labour Relations Court
25 April 2023
JGJacob Gakeri
2,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 1st July 2007 at Kshs.6,500 per month, was arrested on 16th December 2011 over alleged theft, charged, and remanded until his acquittal on 20th August 2015. He claimed he was verbally dismissed on reporting to work in 2015 and sued for unlawful termination, December 2011 salary, notice pay, compensation, severance, underpayment and leave dues totalling Kshs.306,948.31, plus costs and interest. The Respondent asserted that the Claimant absconded duty in December 2011 after being charged, had a prior warning for absconding in 2009, and that the suit was statute barred under Section 90 of the Employment Act. RWI conceded the Claimant was summarily dismissed without a dismissal letter, without a hearing and without attempts to contact him. The court framed three issues: whether the Claimant absconded or was dismissed, whether the suit was time barred, and entitlement to reliefs. It found the Claimant deserted the workplace for 3 years 8 months but that the Respondent failed to comply with Section 41 by not subjecting him to a disciplinary process, and found unfair termination proved on a balance of probabilities. However, applying Section 90, the court held the cause of action arose in December 2011 and the suit filed on 16th October 2017 was far outside the mandatory three-year limitation period, criminal acquittal notwithstanding. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Claimant absconded duty or was summarily dismissed

Holding

The court found the Claimant deserted the workplace by not returning after arrest and charge in December 2011, but also that the Respondent failed to comply with Section 41 by not conducting a disciplinary process, and that the Claimant proved unfair/unlawful termination on a balance of probabilities

Reasoning

The Claimant admitted being away for 3 years 8 months, which the court held was unequivocal evidence of desertion with an expectation of indefinite return. However, the Respondent knew his whereabouts and made no attempt to contact him or subject him to a disciplinary process as required by Section 41, and issued no dismissal letter. On that basis the court found unfair termination proved.

p. 5
02

Whether the suit is time barred

Holding

Yes - the cause of action arose in December 2011 and the suit filed on 16th October 2017 was far outside the three-year period in Section 90 of the Employment Act

Reasoning

Section 90 is mandatory and couched in the negative. The Claimant's own claim was for rights accruing on or before December 2011, and he sought no salary for 2012–2015, acknowledging he rendered no services. Acquittal in a criminal case in 2015 does not extend limitation time for employment claims.

p. 5

Legal principles established

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  • Under Section 90 of the Employment Act, 2007, suits arising from employment must be filed within three years from when the cause of action arises; criminal proceedings do not enlarge that time

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 41
  • Employment ActSection 47(5)
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • Alex Siboi Masinde v K K Security
    [2020] eKLR
  • Seabolo v Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
  • Philip Olang v Guaranty Trust Bank
    [2020] eKLR
  • Olute v County Government of Siaya & another
    [2022] KEELRC
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Fredrick Otieno Onono v Attorney General
    ELRC Misc. App. No. 99 of 2015
  • Jackson Kabingu Gichohi v Attorney General
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (suit based on contract of service)

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, "Makanda v Inter Security Services Limited (Cause 2065 of 2017) [2023] KEELRC 969 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/969/eng@2023-04-25

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