Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedMemorandum of Claim dated 9th July 2020· [2025] KEELRC 600 (KLR)

Claimant v African Commuter Services Limited & others (Employment Claim)

Employment and Labour Relations Court
20 January 2025
6,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

The Employment and Labour Relations Court dismissed a claim for 14 years of unpaid salary because it was filed too late and against the wrong parties.

What this practically means

#

Executive summary

#
The Claimant, formerly Financial Controller and later Finance Manager of the 1st Respondent, sued for unpaid salary from September 2005 to July 2019 (166 months), leave, severance, damages for unfair/constructive termination, allowances, interest, general damages and a 10% share of decretal sums the 1st Respondent recovered in a High Court civil suit, allegedly pursuant to an oral promise. The 2nd Respondent is the administrator of the estate of the deceased director; the 3rd Respondent a co-director. The court framed five issues. On joinder, it held the 2nd and 3rd Respondents were improperly enjoined, applying Salomon v Salomon, since the claim flowed solely from the employment contract and no exceptional circumstances justifying piercing the corporate veil were shown. On limitation, applying Section 4 of the Limitation of Actions Act, the cause of action accrued in September 2005 when salary ceased; the suit filed in 2020 was time barred. The redundancy claim failed for want of evidence of employer-initiated termination on operational requirements. On constructive dismissal, applying the contractual test in Western Excavating and Coca-Cola, the court held the Claimant, by continuing for nearly fifteen years after the alleged repudiatory breach, affirmed the contract and waived and was estopped from asserting constructive dismissal. The 10% claim failed both on the emails' failure to establish a conclusive agreement and on limitation. The suit was dismissed in its entirety with costs. Judgment delivered virtually in Mombasa on 20th January 2025 by Ocharo Kebira, Judge.

Key legal issues

#
01

Proper joinder of directors and the deceased director's estate

Holding

The 2nd and 3rd Respondents were improperly and unjustifiably enjoined.

Reasoning

The suit flowed solely from an employment contract between the Claimant and the 1st Respondent. Applying Salomon v Salomon, no exceptional circumstances such as fraud or crime were pleaded or proved; the apprehension that the company might become a shell was speculative.

p. 11
02

Limitation of actions

Holding

The claim, founded on contract, was time barred, the cause of action having accrued in September 2005.

Reasoning

Under Section 4 of the Limitation of Actions Act, contract claims must be filed within six years. The repudiatory breach (cessation of salary) occurred in September 2005, so the claim ought to have been filed by September 2011; it was filed in 2020, about nine years late.

p. 11
03

Redundancy

Holding

The Claimant failed to demonstrate any action or declaration by the employer terminating employment on operational requirements.

Reasoning

Redundancy requires an employer-initiated termination for operational requirements, not speculation by the employee. The Claimant produced no such evidence of a declaration or action by the employer.

p. 11
04

Constructive dismissal

Holding

The claim failed; the Claimant affirmed the contract by continuing for nearly fifteen years after the alleged repudiatory breach.

Reasoning

Applying the contractual test from Western Excavating and Coca-Cola, the repudiatory breach occurred in September 2005 when salary ceased. The employee must leave within a reasonable time; by continuing, he waived and is estopped from asserting constructive dismissal.

p. 13
05

Claim for 10% share of decretal sum based on oral promise

Holding

The claim failed: no conclusive agreement was established from the emails and, in any event, the claim was time barred.

Reasoning

The emails showed no conclusive agreement on compensation. Further, the promise was allegedly made after the 2008 judgment and enforcement was sought twelve years later, beyond the six-year limitation period for contract claims.

p. 13

Legal principles established

#
  • A company is a separate legal entity and its directors/estate cannot be sued on its employment contracts absent exceptional circumstances
  • An employee must terminate employment within a reasonable time of a repudiatory breach or waive the right to claim constructive dismissal

Court orders

#
  1. 1.The Claimant's case is dismissed with costs

Authorities

#

Legislation

  • Limitation of Actions ActSection 4[1][a]; Section 4, Cap 22
  • Evidence ActSection 106B
  • Employment ActSection 49[1][c]
  • Civil Procedure RulesOrder 1 rule 3

Cases cited (13)

  • Coca-Cola East & Central Africa v Maria Kagia Ligaga
    [2015] eKLR
  • Peter Kaburu Karanja v Kirinyaga Construction [K] Limited
    [2020] eKLR
  • Board of Governors Cardinal Otunga High School Mosocho & 2 others v Elizabeth Kwamboka Khaemba
    [2016] eKLR
  • Mary Kasiwa v Scorpio Enterprises Limited
    [2013] eKLR
  • Wilson Nyabuto Areri v Postal Corporation of Kenya
    [2018] eKLR
  • Milton M Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • Western Excavating ECC Ltd v Sharp
    [1978] 2 WLR 344; [1978] QB 761
  • D.K Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • GMV v Bank of Africa Kenya Limited
  • Salomon v Salomon
    [1897] AC
  • African Commuter Services Limited v The Attorney General & Kenya Civil Aviation Authority
    Nairobi High Court Civil Case No. 1208 of 2003
  • The Attorney General & Civil Aviation Authority v African Commuter Services Limited
    Nairobi Civil Appeal No. 311 of 2009
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Claimant v African Commuter Services Limited & others (Employment Claim)", Case Analysis (2025). Memorandum of Claim dated 9th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/600/eng@2025-01-20

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