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ELRCStruck OutClaim dated 23rd October, 2017, filed 24th October, 2017 (ELRC, Nairobi)· [2024] KEELRC 1855 (KLR)

Oduor v Board of Management Makongeni Secondary School (Cause 2136 of 2017) [2024] KEELRC 1855 (KLR)

Employment and Labour Relations Court
17 July 2024
3,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a security guard's claim because he filed it over three years after his job ended, past the legal deadline.

What this practically means

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Executive summary

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The Claimant, employed as a Security Guard by the Respondent school from 20th May 2012, sued on 24th October 2017 alleging unlawful and unfair declaration of redundancy and/or termination of employment on 14th April 2014, and claiming Kshs.446,833 in terminal dues including notice pay, unpaid salary, house allowance, severance, leave, off-days, public holidays, underpayment, overtime and 12 months' compensation. The Respondent denied termination, contending the Claimant absconded duty from December 2013, was traced and requested to resume, returned briefly in April 2014 and disappeared again. The court framed three issues: limitation, lawfulness of termination, and reliefs. It found that the employment ended in April 2014, holding that the Claimant's contradictory accounts (verbal redundancy versus compulsory leave), the backdated certificate of service, and the omission of any termination date in the pleadings showed the alleged October 2014 termination was contrived to bring the suit within Section 90 of the Employment Act's three-year limitation period. The suit being time-barred implicated jurisdiction. In the alternative, the court found the Claimant deserted the workplace and failed to discharge the Section 47(5) burden of proving unfair termination, the Respondent's tracing efforts being reasonable. No relief was available. The court struck out the suit as statute barred and ordered each party to bear its own costs.

Key legal issues

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01

Whether the suit was filed outside the three-year limitation period under Section 90 of the Employment Act, 2007

Holding

The suit is statute barred because the employment ended in April 2014, more than three years before the suit filed on 24th October 2017; the alleged October 2014 termination lacked evidential support and appeared contrived to defeat limitation

Reasoning

The court examined the claimant's contradictory accounts (verbal redundancy on 14th April 2014 per the demand letter versus compulsory leave per the witness statement), the backdated 'To whom it may concern', the unexplained omission of any termination date in the Memorandum of Claim, and the fact that only 14 days' April 2014 salary was claimed. It concluded the relationship ended in April 2014, rendering the suit filed over three years later incurably time-barred.

p. 6
02

Whether the Claimant was unlawfully terminated or deserted the workplace

Holding

The Claimant deserted the workplace and failed to discharge the burden under Section 47(5) of proving unfair termination

Reasoning

The court found the Respondent's witnesses credible: the Claimant left on 26th December 2013, was traced to his house and asked to resume, returned briefly in April 2014 and disappeared again. His alleged leg injury was unproven. Desertion amounts to gross misconduct; the employer's tracing efforts were reasonable. The Claimant's own evidence on 14th April 2014 was contradictory and of nominal probative value.

p. 8
03

Whether the Claimant is entitled to the reliefs sought

Holding

The question of reliefs does not arise given the findings on limitation and desertion

Reasoning

Having found the suit statute barred and the Claimant an absconder who failed to prove unfair termination, the court declined to consider the terminal dues, severance, leave, overtime or 12 months' compensation claims, striking out the suit entirely.

p. 8

Legal principles established

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  • Limitation of time implicates the court's jurisdiction to hear and determine a suit
  • Under Section 47(5) of the Employment Act, 2007 the employee bears the burden of proving unfair termination or wrongful dismissal
  • An employer who ascertains an absconding employee's whereabouts and asks him to resume duty has demonstrated desertion and need not pursue him further

Court orders

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  1. 1.The Claimant's suit dated 23rd October, 2017 and filed on 24th October, 2017 is struck out on account of being statute barred
  2. 2.Parties shall bear own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Sections 41, 43, 45 and 47(5) (as referenced in Daniel Mueke quote)
  • Limitation of Actions ActSection 4(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (16)

  • Pius Machafu Isindu V Lavington Security Guards
    (2017) eKLR
  • Evans Ochieng Oluoch V Njimia Pharmaceuticals Ltd
    (2016) eKLR
  • Judith Atieno Owuor V Sameer Agriculture & Livestock Ltd
    (2020) eKLR
  • Rajab Barasa & 4 others V Kenya Meat Commission
    (2016) eKLR
  • Fancy Jeruto Cherop & another V Hotel Cathay Ltd
    (2018)
  • Alphonce Maghanga Mwachanya V Operations 680 Ltd
    (2013) eKLR
  • Daniel Gachanja Githaiga V Credit Reference Bureau Africa Ltd & 2 others
    (2020) eKLR
  • Mbuthia Macharia V Annah Mutua & another
    (2017) eKLR
  • Daniel Mueke V Bhogas/Phogas Auto World
    (2014) eKLR
  • Julius Kyalo Malonza V Ruth Osolo t/a Eraeva Catering Services
    (2021) eKLR
  • Boniface Francis Mwangi V B.O.M Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Charity Wambui Muriuki V M/s Total Security Surveillance Ltd
    (2017) eKLR
  • Mutie V KB Sanghani & Sons
    (2023) KEELRC 594 (KLR)
  • Owners of Motor Vessel "Lillian S" V Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (labour and employment relations jurisdiction); suit under 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, "Oduor v Board of Management Makongeni Secondary School (Cause 2136 of 2017) [2024] KEELRC 1855 (KLR)", Case Analysis (2024). Claim dated 23rd October, 2017, filed 24th October, 2017 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1855/eng@2024-07-17

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