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ELRCDismissedNot stated in the judgment text provided· [2023] KEELRC 2971 (KLR)

Otieno v Music Copyright Society of Kenya Ltd (Cause 343 of 2019) [2023] KEELRC 2971 (KLR)

Employment and Labour Relations Court
21 November 2023
JGJacob Gakeri
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employment claim filed even a few weeks past three years from dismissal was dismissed, because the three-year clock starts on the dismissal date, not the appeal outcome.

What this practically means

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Executive summary

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The Claimant, formerly a Consultant and later Legal Officer of the Respondent, sued for unfair termination and non-payment of dues arising from a summary dismissal by letter dated 24th March 2016, effective 23rd March 2016, alleging breach of Sections 41, 43, 45(2)(b) and 47(5) of the Employment Act, 2007 and seeking a declaration of unfair termination, loss of income of Kshs.3,713,400, twelve months' gross salary as compensation, unpaid salary for March to May 2016, and punitive damages of Kshs.18,000,000. The Respondent asserted the Claimant was dismissed for conflict of interest - assigning work to and raising fees through his own firm, Otieno Arum & Co. Advocates - and that a disciplinary process was followed. On the evidence, the court first addressed limitation under Section 90 of the Employment Act, which the Claimant's counsel had ignored. Applying Court of Appeal authority that the cause of action in a termination claim accrues on the date of termination and is not held in abeyance by an internal appeal, the court found the suit, filed on 27th May 2019, was filed beyond three years of the effective dismissal date of 23rd March 2016 (and even beyond the notification date of 30th March 2016) and was therefore statute barred, leaving the court without jurisdiction. The remaining issues on fairness and reliefs were not determined. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Claimant's suit is statute barred under Section 90 of the Employment Act, 2007

Holding

The suit, filed 27th May 2019, was filed beyond three years from the effective date of dismissal (23rd March 2016) and was statute barred; even using the notification date of 30th March 2016 it was still out of time.

Reasoning

Relying on Court of Appeal authority, the court held the cause of action in unfair termination accrues on the date of termination; an internal appeal does not hold accrual in abeyance. The summary dismissal was effective 23rd March 2016, and the suit filed on 27th May 2019 exceeded the three-year limitation period, depriving the court of jurisdiction.

p. 6
02

Whether termination was unfair and whether reliefs were payable

Holding

Not determined; the limitation finding disposed of the suit.

Reasoning

Having found the suit statute barred, the court held the remaining issues were not amenable to determination, since jurisdiction is everything and a court without jurisdiction cannot adjudicate the merits of the fairness of the termination or the quantum of dues claimed.

p. 6

Legal principles established

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  • In employment claims under the Employment Act, time under Section 90 starts running from the date of termination or dismissal, not from the outcome of any internal review or appeal.
  • A suit not commenced within the three years prescribed by Section 90 of the Employment Act is statute barred and the court lacks jurisdiction over it.

Court orders

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  1. 1.The suit filed on 27th May, 2019 is dismissed as statute barred, the court lacking jurisdiction to determine it.
  2. 2.Parties shall bear their own costs.

Authorities

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Legislation

  • Employment ActSections 41, 43, 45(2)(b), 47(5), 44(3), 90
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (7)

  • Kenfreight (EA) Ltd V Benson K. Nguti
    (2019) eKLR
  • Mckinley V BC Tel
    (2001) 2 SCR 161, 2001 SCC 38
  • Kenya Power & Lighting Co. Ltd V Aggrey Lukorito Wasike
    (2017) eKLR
  • Nyabuto Arambe Abusa V Kenya Power & Lighting Co. Ltd
    (2017) eKLR
  • Attorney General & another V Andrew Maina Githinji & another
    (1916) eKLR
  • Hilarion Mwabolo V Kenya Commercial Bank
    (2013) eKLR
  • Ben Kiplagat Tunduny V Standard Chartered Bank Ltd
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising out of contract of service; Section 90 limitation invoked)

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 Music Copyright Society of Kenya Ltd (Cause 343 of 2019) [2023] KEELRC 2971 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2971/eng@2023-11-21

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