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ELRCStruck OutNot specified in judgment (referenced as Kisumu ELRC Cause No. 35 of 2020 was an earlier related matter)· [2024] KEELRC 2018 (KLR)

Osolo v Maseno University & 2 others (Cause E010 of 2022) [2024] KEELRC 2018 (KLR)

Employment and Labour Relations Court
25 July 2024
2,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a professor's Kshs 3.9 million leave claim because it was filed too late, three years after the deadline.

What this practically means

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Executive summary

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The Claimant, a former employee of Maseno University from 12th July 1999 to January 2016, sued for payment in lieu of untaken leave over 16 years of service (Kshs. 3,916,160) and for untaken sabbatical leave, alleging the Respondents required him to remain on duty without pay in lieu. The Respondents denied the claims, contending the Claimant never applied for leave or sabbatical leave, that leave not taken within the stipulated period is forfeited under Section 28 of the Employment Act, and that the suit was statute barred under Section 90. The Respondents also challenged the locus of Pius Stephen Opiyo, who testified for the Claimant under a power of attorney. The court framed three issues: limitation, locus, and entitlement to relief. On limitation, it held that leave claims accrue annually and extinguish within a year, and in any event payment for untaken leave was a terminal benefit payable at retirement; the Claimant having retired in January 2016, the claim was extinguished by January 2019, well before the suit filed in March 2022. On locus, CW1 admitted his power of attorney related only to a prior cause (No. 35 of 2020), making him a stranger to this suit. The remaining issue was left undetermined as academic. The claim was struck out with costs to the Respondents.

Key legal issues

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01

Whether the claim is statute barred

Holding

Yes - the claim, having accrued on retirement in January 2016, extinguished in January 2019, three years before the suit was filed in March 2022

Reasoning

Section 90 of the Employment Act limits contract-of-service claims to three years and continuing injuries to twelve months. Leave claims accrue annually and extinguish within a year; alternatively, payment for untaken leave was payable as a terminal benefit at retirement. Having retired in January 2016, the claimant's right of action was extinguished by January 2019.

p. 5
02

Whether Pius Stephen Opiyo had locus standi to prosecute the suit

Holding

No - his power of attorney related only to Cause No. 35 of 2020, not this matter, rendering his testimony of no probative value

Reasoning

CW1 admitted on cross-examination that his power of attorney from the Claimant was specific to Cause No. 35 of 2020. Without authority covering this suit, he had no interest to protect and could not competently testify for the Claimant.

p. 6
03

Whether the Claimant is entitled to the reliefs sought

Holding

Not determined - the court declined to address this as an academic exercise after the findings on limitation and locus

Reasoning

Having held the claim statute barred and the testifying witness a stranger without locus, the court found it unnecessary to determine entitlement to the reliefs and let the remaining issue fall away.

p. 6

Legal principles established

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  • A claim for leave or payment in lieu of leave accrues at the end of every year of service and is extinguished within one year of accrual as a continuing injury under Section 90 of the Employment Act
  • Payment for accrued untaken leave ought to have been claimed as part of terminal benefits at retirement, after which the three-year limitation period runs
  • A person testifying without a valid power of attorney covering the specific suit is a stranger without locus standi

Court orders

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  1. 1.The Claimant's claim dated 1st March, 2022, and filed on 2nd March, 2022, is struck out with costs to the Respondents.

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 28
  • Limitation of Actions ActSection 4(1)

Cases cited (6)

  • Rajab Barasa & 4 Others versus Kenya Meat Commission
    (2016) e-KLR
  • Mwende Mbiti v Citrus Inn Limited
    (2018) eKLR
  • Alfred Njau & 5 others vs. City Council of Nairobi
    [1983] eKLR
  • Francis Mwangi Mugo Vs David Kamau Achago
    [2017] eKLR
  • Gathoni vs. Kenya Co-Operative Creameries Ltd.
    [1982] KLR 104
  • Iga vs. Makerere University
    [1972] EA
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90 applied to the contract of service claim)

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, "Osolo v Maseno University & 2 others (Cause E010 of 2022) [2024] KEELRC 2018 (KLR)", Case Analysis (2024). Not specified in judgment (referenced as Kisumu ELRC Cause No. 35 of 2020 was an earlier related matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2018/eng@2024-07-25

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