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ELRCDismissedNot stated in judgment· [2024] KEELRC 2282 (KLR)

Gontier v Acacia Medical Centre Limited (Employment and Labour Relations Cause E594 of 2022) [2024] KEELRC 2282 (KLR)

Employment and Labour Relations Court
26 September 2024
BMB. O. M. Manani
1,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that salary arrears claims count as continuing injuries, giving employees a fresh twelve-month window from the last accrual.

What this practically means

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Executive summary

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The Claimant sued for Ksh. 3,534,000 in salary arrears allegedly accruing between 1 February 2012 and the date of suit. The Respondent, which had not filed a defence, raised a preliminary objection on limitation, contending the cause of action accrued on 1 February 2012 and that under section 90 (now section 89) of the Employment Act suit should have been filed within three years, rendering the 2022 suit untenable. The Claimant countered that the sum began accumulating in February 2012 and continued rising until February 2022, crystallising around October 2021 when the Respondent expressed reservations about settlement. The court analysed section 89 of the Employment Act, holding it ousts section 4(1) of the Limitation of Actions Act for employment disputes and, save for continuing injury claims which must be brought within twelve months of cessation, bars claims outside three years from accrual. Relying on Cotec Security Group Ltd and the Court of Appeal's decision in The German School Society v Ohany, which classified back pay claims as continuing wrongs, the court held the claim to be a continuing injury last inflicted in February 2022 when the amount was last adjusted upwards. The suit filed on 22 August 2022, roughly six months later, fell within the twelve-month window and was not time barred. The preliminary objection was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the salary arrears claim is a continuing injury and thus not time barred

Holding

The claim was a continuing injury, last inflicted in February 2022; the suit filed on 22 August 2022 was within twelve months and is therefore not time barred.

Reasoning

Section 89 of the Employment Act excludes section 4(1) of the Limitation of Actions Act and bars employment claims outside three years from accrual, except continuing injury claims which must be brought within twelve months of cessation. The Claimant pleaded that the sum began accumulating in February 2012 and continued to rise until February 2022. The suit filed in August 2022 was about six months after the last adjustment, hence within time.

p. 3

Legal principles established

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  • The critical consideration in continuing injury claims is whether the claim was instituted within twelve months of cessation of the injury, not when it commenced.
  • Section 89 of the Employment Act ousts section 4(1) of the Limitation of Actions Act for employment disputes.

Court orders

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  1. 1.The preliminary objection by the Respondent is dismissed with costs to the Claimant

Authorities

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Legislation

  • Employment Actsection 89 (previously section 90)
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Cotec Security Group Ltd (Formerly Known as Bedrock Holdings Ltd) v Kenya National Private Security Workers Union
    Appeal E023 of 2023 [2024] KEELRC 610 (KLR)
  • The German School Society & another v Ohany & another
    Civil Appeal 325 & 342 of 2018 (Consolidated) [2023] KECA 894 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (limitation under section 89)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Gontier v Acacia Medical Centre Limited (Employment and Labour Relations Cause E594 of 2022) [2024] KEELRC 2282 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2282/eng@2024-09-26

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