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ELRCDismissedMilimani CMEL No 151 of 2019 (appeal therefrom)· [2023] KEELRC 2513 (KLR)

Isandula v Friends Church (Quakers) Nairobi Yearly Meeting (Civil Appeal 35 of 2019) [2023] KEELRC 2513 (KLR)

Employment and Labour Relations Court
18 October 2023
LNLINNET NDOLO
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that salary arrears claims must be filed within 12 months of each unpaid period, not from retirement.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Nairobi against the Ruling of Hon. P. Muholi, SRM delivered on 4th September 2019 in Milimani CMEL No 151 of 2019. The trial Magistrate had upheld the Respondent's Preliminary Objection and struck out all the Appellant's claims for salary arrears and leave pay as statute barred under Section 90 of the Employment Act. The Appellant, who retired on 30th October 2018 and filed his claim four months after completing employment, argued that his salary arrears were a continuing injury or damage whose limitation period ran only from cessation at retirement. He relied on G4S Security Services (K) Limited v Joseph Kamau and George Hiram Ndirangu v Equity Bank Limited. The Respondent relied on E. Torgbor v Ladislaus Odongo Ojuok. Linnet Ndolo J reproduced Section 90 and held that a continuing-injury claim must be filed within twelve months of the last episode of violation, which need not coincide with the date of leaving employment. Because the Appellant's own Memorandum of Claim specified salary arrears for periods from 1987 to 1999 - far before retirement - those were the accrual dates, and the claims were statute barred. The court confirmed the trial court's decision upholding the Preliminary Objection, dismissed the appeal, and directed that costs of the appeal abide the outcome of the trial in the lower court. Judgment was delivered virtually at Nairobi on 18th October 2023.

Key legal issues

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01

Limitation of continuing injury claims under Section 90 of the Employment Act

Holding

Salary arrears claims based on specific pleaded periods do not accrue on retirement; they accrued on the pleaded dates and are statute barred if filed outside the 12-month window.

Reasoning

Section 90 provides a 3-year limitation for actions under the Employment Act or a contract of service, and 12 months for continuing injury or damage from cessation thereof. The court read the provision to mean that a continuing-injury claim must be lodged within twelve months of the last episode of violation. Because the Appellant's own Memorandum of Claim specified arrears for 1987-1999, those were the accrual dates, not the 30th October 2018 retirement date, so the trial Magistrate correctly struck them out as statute barred.

p. 2

Legal principles established

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  • A party laying a claim of continuing injury or damage under Section 90 of the Employment Act must do so within twelve months after the last episode of violation, which may or may not coincide with the date of leaving employment.
  • The dates pleaded in a Memorandum of Claim, not the retirement date, constitute the accrual dates of claims for salary arrears.

Court orders

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  1. 1.The decision by the trial court upholding the Preliminary Objection raised by the Respondent is confirmed
  2. 2.The appeal is dismissed
  3. 3.The costs of this appeal will abide with the outcome of the trial in the lower court

Authorities

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Legislation

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

Cases cited (3)

  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • George Hiram Ndirangu v Equity Bank Limited
    [2015] eKLR
  • E. Torgbor v Ladislaus Odongo Ojuok
    [2015] eKLR
On appeal from
Chief Magistrate's Court (Milimani)
Milimani CMEL No 151 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court ruling (Employment and Labour Relations Court 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, "Isandula v Friends Church (Quakers) Nairobi Yearly Meeting (Civil Appeal 35 of 2019) [2023] KEELRC 2513 (KLR)", Case Analysis (2023). Milimani CMEL No 151 of 2019 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2513/eng@2023-10-18

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