Oduor v Board of Management Makongeni Secondary School (Cause 2136 of 2017) [2024] KEELRC 1855 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit was filed outside the three-year limitation period under Section 90 of the Employment Act, 2007
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
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.
Whether the Claimant was unlawfully terminated or deserted the workplace
The Claimant deserted the workplace and failed to discharge the burden under Section 47(5) of proving unfair termination
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.
Whether the Claimant is entitled to the reliefs sought
The question of reliefs does not arise given the findings on limitation and desertion
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.
Legal principles established
#- 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
#- 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.Parties shall bear own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution (labour and employment relations jurisdiction); suit under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.