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ELRCOtherNot stated in the judgment· [2024] KEELRC 1523 (KLR)

Mugutha v Gitau alias Veronica Wairimu Van Helden; Helden (Interested Party) (Cause 1001 of 2018) [2024] KEELRC 1523 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that unpaid salary claims on an ongoing employment contract are not automatically time-barred, even after many years.

What this practically means

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Executive summary

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This is a ruling on a Notice of Preliminary Objection dated 20th November 2023 in a claim by a domestic worker engaged in 1982 by the Respondent and the Interested Party, a couple who later relocated to the Netherlands leaving their Kenyan home in his care. The Claimant alleges non-payment of salary from 2005. The Respondent objected that the claim, filed in 2018, was time-barred under Section 90 of the Employment Act, which prescribes a three-year limitation period from accrual. Parties agreed to have the objection determined on pleadings, documents and submissions, confirmed on 25th January 2024. The Court declined the objection. It reasoned that the Claim is based on an allegedly active contract of employment with ongoing mutuality of obligations; the Interested Party's long witness statement supports that the Claimant still cares for the couple's property, while the Respondent contends he is a caretaker leasing out stalls and collecting rent. The Court held that on an ongoing employment contract, each month's failure to pay salary renews the cause of action, so Section 90 does not defeat the claim at a preliminary stage. The Court identified triable issues: whether an employer-employee relationship existed and subsists between the Claimant and the Respondent, or whether the Claimant is an entrepreneur or caretaker benefiting from the couple's breakdown; and if he was employed by the Interested Party, the Respondent should not pre-empt proof of that employment. The facts, including the date of accrual, are disputed and the claim cannot be determined preliminarily. The Court ordered that the Preliminary Objection is declined, with costs in the cause.

Key legal issues

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Whether a claim for unpaid salaries on an allegedly subsisting contract of employment is caught by the 3-year limitation period under Section 90 of the Employment Act

Holding

The Preliminary Objection on limitation was declined; the Court held that on an active employment contract with ongoing mutuality of obligations, the cause of action renews with each month of non-payment, and the facts including the date of accrual are disputed.

Reasoning

The Claimant maintains he is still an employee, with an active contract and ongoing mutuality of obligations. The Interested Party's witness statement supports that the Claimant continues caring for the couple's property in Kenya, though the capacity is unclear. The Respondent disputes the employment relationship and says the Claimant is a caretaker deriving benefit from the couple's separation. Because accrual and the existence of the employment relationship are disputed factual questions, the limitation point cannot be determined preliminarily and must go to full trial.

p. 2

Legal principles established

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  • Where a claim is based on an active contract of employment with ongoing obligations, each month's non-payment of salary renews the cause of action, so the claim is not extinguished by Section 90 of the Employment Act

Court orders

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  1. 1.Preliminary Objection by the Respondent is declined
  2. 2.Costs in the cause
Jurisdiction invoked
Employment and labour relations jurisdiction (the judgment does not cite a specific constitutional or statutory basis)

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, "Mugutha v Gitau alias Veronica Wairimu Van Helden; Helden (Interested Party) (Cause 1001 of 2018) [2024] KEELRC 1523 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1523/eng@2024-06-14

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