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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3047 (KLR)

Kaniu v Kenya Airports Authority (Employment and Labour Relations Cause 585 of 2019) [2023] KEELRC 3047 (KLR)

Employment and Labour Relations Court
24 November 2023
AMAnna Ngibuini Mwaure
1,304 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an unfair dismissal claim filed nine years late, confirming unpaid final dues do not extend the three-year filing deadline.

What this practically means

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Executive summary

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The Claimant, a former employee of Kenya Airports Authority, filed a memorandum of claim on 27th August 2019 challenging his dismissal on 10th November 2010 on grounds of gross misconduct following a disciplinary process. The Respondent filed a Notice of Preliminary Objection on 25th May 2023 contending that the suit was time barred under section 90 of the Employment Act, 2007, which requires claims arising out of the Act or a contract of service to be instituted within three years, or within twelve months of the cessation of a continuing injury. The Respondent argued the claim should have been filed by 9th November 2013, relying on Gerald Muli Kilu v Barclays Bank of Kenya Ltd. The Claimant countered that there was a continuous injury occasioned by the Respondent's failure to pay salary accrued before dismissal, which had not ceased because the Respondent had not filed a response demonstrating payment of final dues under section 18(4), relying on German School Society v Helga Ohany. The court, applying the Court of Appeal's decision in G4S Security Services (K) Limited v Joseph Kamau & 468 others and Serah Wairimu Kihara v Nokia Solutions Branch Operations, held that a continuing injury claim must be filed within twelve months of cessation and that unpaid final dues alone do not extend limitation. Noting the inordinate delay of nearly nine years and the absence of evidence of a continuing injury, the court upheld the objection, found the suit time barred, dismissed it, and ordered each party to bear their own costs.

Key legal issues

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01

Limitation under section 90 of the Employment Act, 2007

Holding

A claim for unfair termination accrued on the date of dismissal (10th November 2010) and had to be filed within three years; a claim filed nearly 9 years later is time barred and the court is denied jurisdiction.

Reasoning

Section 90 bars any civil action arising out of the Employment Act or a contract of service unless commenced within three years of the act, neglect or default complained of, or within twelve months of cessation of a continuing injury. The Claimant was dismissed on 10th November 2010 and filed suit on 27th August 2019. No continuing injury was established because unpaid final dues do not keep the injury alive; the Claimant took no reasonable steps within the additional 12-month window. The inordinate delay of nearly 9 years rendered the claim stale.

p. 3
02

Whether non-payment of final dues constitutes a continuing injury

Holding

No - the Claimant failed to establish a continuing injury merely from non-payment of final dues, and even if there were one, suit should have been filed within 12 months of cessation.

Reasoning

The Claimant argued the non-payment of salary accruing before dismissal was a continuous injury that had not ceased because the Respondent never filed a response showing payment of final dues under section 18(4). The court, applying G4S Security Services and Serah Wairimu Kihara, held that a continuing injury claim must still be lodged within twelve months of cessation, and the burden lay on the Claimant to demonstrate diligence, which was not shown.

p. 3

Legal principles established

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  • Upon dismissal, any claim based on a continuing injury under section 90 of the Employment Act must be filed within twelve months of the cessation of the injury, failing which it is time barred
  • Failure to pay final dues does not of itself constitute a continuing injury that suspends limitation; the claimant must still act within the statutory period

Court orders

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  1. 1.Preliminary objection upheld; the suit is found to be time barred
  2. 2.The suit is dismissed
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 18(4)
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (4)

  • Gerald Muli Kilu V Barclays Bank of Kenya Ltd
    (2016) EKLR
  • German School Society v Helga Ohany
    [2017] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Serah Wairimu Kihara v Nokia Solutions Branch Operations
    [2021] EKLR
Jurisdiction invoked
Employment Act, 2007 (employment and labour relations jurisdiction); preliminary objection under section 90 of the Employment Act, 2007

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, "Kaniu v Kenya Airports Authority (Employment and Labour Relations Cause 585 of 2019) [2023] KEELRC 3047 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3047/eng@2023-11-24

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