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ELRCOtherNot stated in judgment· [2024] KEELRC 985 (KLR)

Bichanga v Mount Kenya University (Cause E073 of 2022) [2024] KEELRC 985 (KLR)

Employment and Labour Relations Court
11 April 2024
BMB. O. M. Manani
994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Unpaid salary arrears that keep building up while you're still employed cannot be blocked by Kenya's three-year employment claim deadline.

What this practically means

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Executive summary

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The Claimant sued to recover salary arrears of Ksh. 2,505,000.00, alleging he rendered services to the Respondent from 2010 to the date of filing suit and that part of his remuneration was withheld over the years. The Respondent filed a defence and a Notice of Preliminary Objection dated July 8, 2023 asserting the suit was time barred under section 90 of the Employment Act. The Respondent relied on Ogola v Mount Kenya University, where leave to file suit out of time was sought more than three years after the debt crystallised and after the employment relationship had presumably terminated. Manani J distinguished that case: here there was no suggestion the employment relationship had ended, and the Claimant's case was that the arrears continued to accumulate from 2010 to the date of filing. The court adopted the Court of Appeal's recent decision in The German School Society & another v Ohany & another, which held that outstanding benefits accumulating while the parties remained in the employment relationship constituted a continuing injury and continuing wrong within section 90, so the claims were not time barred. Although the judge noted he had previously expressed a contrary view in Siro v Muyundo, he held himself bound by the Court of Appeal's latest position. The court concluded the claim was not time barred, found the preliminary objection not well founded, and dismissed it with costs. This ruling disposed only of the preliminary objection; the substantive claim for the arrears remains to be determined.

Key legal issues

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01

Whether a claim for salary arrears accruing during a subsisting employment relationship is caught by the three-year limitation period in section 90 of the Employment Act

Holding

The claim is not time barred because the unpaid remuneration constituted a continuing injury/continuing wrong, following the Court of Appeal's decision in The German School Society & another v Ohany & another.

Reasoning

The court distinguished Ogola v Mount Kenya University, where the debt had crystallised and the employment relationship had presumably terminated. Here, the Claimant asserted the employment relationship subsisted from 2010 to the date of filing and that the arrears continued to accumulate. Applying the Court of Appeal's recent holding in German School Society v Ohany that outstanding benefits accumulating during a subsisting employment relationship amount to a continuing injury, the court held section 90 did not bar the suit, notwithstanding its own earlier contrary view in Siro v Muyundo, by which it regarded itself as bound.

p. 2

Legal principles established

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  • A claim for employment benefits that continues to accumulate while the parties remain in the employment relationship constitutes a continuing wrong within section 90 of the Employment Act and is not time barred.
  • A trial court of concurrent jurisdiction is bound by the Court of Appeal's latest position on a point of law, even where it has previously expressed a contrary view.

Court orders

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  1. 1.The Notice of Preliminary Objection dated July 8, 2023 is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 90
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Ogola V Mount Kenya University
    (Miscellaneous Civil Application E046 of 2022) [2023] KEELRC 2281 (KLR) (28 September 2023) (Ruling)
  • The German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) (24 July 2023) (Judgment)
  • Siro v Muyundo & 2 others (All being sued in their capacity as Chairperson, Secretary and Treasurer of Ray of Hope Clinic & Community Centre)
    (Cause 1108 of 2018) [2022] KEELRC 13256 (KLR) (16 November 2022) (Judgment)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 90 invoked on limitation)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bichanga v Mount Kenya University (Cause E073 of 2022) [2024] KEELRC 985 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/985/eng@2024-04-11

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