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ELRCStruck OutCause No 49 of 2019· [2023] KEELRC 2353 (KLR)

Muga & 2 others v Sinohydro Corporation Ltd (Cause 49 of 2019) [2023] KEELRC 2353 (KLR)

Employment and Labour Relations Court
5 October 2023
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A family's claim over a deceased worker's terminal dues was struck out because they filed suit three years after the employer paid the dues.

What this practically means

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Executive summary

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The Claimants, administrators of the estate of Kennedy Odhiambo Okeyo, sued the deceased's former employer for two months' unpaid salary, gratuity, pension and insurance benefits, alleging the family received only Kshs. 523,284 instead of entitlements computed on a USD 2,500 monthly salary. The Respondent maintained that the deceased was engaged on a three-year fixed-term contract in Saudi Arabia, was never terminated, and that upon his death on 11th October, 2015, a duly authorized family member executed a discharge agreement on 22nd October, 2015 and received full terminal dues comprising a month's salary, end-of-service pay and a solatium. The Respondent further contended the claim, filed 29th May, 2019, was time barred under Section 90 of the Employment Act, that gratuity is contractual and unavailable, and that the insurance covered only employment injuries. The Claimants filed no submissions. The court framed two issues: whether the suit was statute barred and whether the Claimants were entitled to the remedies sought. Holding that the employee died rather than being terminated or resigning, the court found terminal dues became due on death and that the cause of action in dispute - the amount paid - accrued on the payment date of 22nd October, 2015. The suit filed on 29th May, 2019 was therefore time barred by close to seven months. Limitation being jurisdictional, the claim was struck out with no orders on costs, the merits not being reached.

Key legal issues

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01

Whether the suit was statute barred under Section 90 of the Employment Act

Holding

Yes - the cause of action accrued on 22nd October, 2015 when terminal dues were paid; the suit filed on 29th May, 2019 was time barred by close to seven months

Reasoning

The employee was neither terminated nor resigned; he died, so terminal dues became due on death. Payment was made within about ten days on 22nd October, 2015. Since the disputed issue was the amount paid, the cause of action arose on the payment date. Section 90 requires suits within three years, and the limitation period is jurisdictional, so the claim filed in May 2019 was time barred.

p. 5
02

Whether the Claimants were entitled to the remedies sought

Holding

The claim was struck out before the merits could be determined, so no remedies were awarded

Reasoning

Because the suit was statute barred, the court did not reach the substantive questions of unpaid salary, gratuity or insurance benefits. The entitlement issue was rendered moot by the striking out of the claim on jurisdictional limitation grounds.

p. 5

Legal principles established

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  • Where an employee dies and terminal dues are paid, the cause of action in respect of the amount paid accrues on the date of payment
  • Limitation of actions under Section 90 of the Employment Act is a jurisdictional issue

Court orders

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  1. 1.The Claimants' claim filed on 29th May, 2019 is struck out for being statute barred
  2. 2.No orders on costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (9)

  • John Kiiru Niiiri v University of Nairobi
    [2021] eKLR
  • Coastal Bottlers Ltd v Kimathi Mithika
    (2018) eKLR
  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
  • Hilarion Mwabolo v Kenya Commercial Bank
    (2013) eKLR
  • David Ngugi Waweru v Attorney General & Another
    (2017) eKLR
  • Anne Waithira Kimani v Stephen Ndungu Njenga
    (2013) eKLR
  • Gathoni vs. Kenya Co-operative Creameries Ltd
    Civil Application No. 122 of 1981
  • Kenya Electrical and Allied Workers Union v. Kenya Power and Lighting Ltd
    (2015) eKLR
  • Divecon v. Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (limitation under Section 90)

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, "Muga & 2 others v Sinohydro Corporation Ltd (Cause 49 of 2019) [2023] KEELRC 2353 (KLR)", Case Analysis (2023). Cause No 49 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2353/eng@2023-10-05

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