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ELRCAllowedNot stated in judgment

Wanyonyi v Seneca East Africa Limited (Appeal E178 of 2023) [2025] KEELRC 1353 (KLR)

Employment and Labour Relations Court
5 May 2025
2,938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that claims for unpaid leave, underpayment and savings survive retirement if filed within 12 months.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against a ruling of Honourable M.W Murage delivered on 28th July 2023 in Milimani CMEL No. E1687 of 2021, allowing the Respondent's preliminary objection and dismissing the Appellant's entire claim as time barred under section 90 of the Employment Act. The Appellant, a security guard employed in 2009 who retired in January 2021, filed his claim in September 2021 seeking unpaid salary, unpaid leave, underpayment of salary from 2015 to 2021, refund of uniform deductions, savings deductions, and statutory gratuity. The court framed a single issue: whether the trial court erred in finding the claims time barred as non-continuing injuries. Applying Court of Appeal authority including G4S Security Services v Kamau and The German School Society v Ohany, the court held that unpaid leave, underpayment and unpaid savings are continuing injuries which must be filed within 12 months of cessation of employment; the Appellant filed within 8 months of retirement, so those claims were in time. The non-continuing claims (gratuity, unpaid salary, refunds) were filed within three years and were also valid; the trial court erred in dismissing the whole claim. The appeal succeeded, the ruling of 28th July 2023 was set aside, the suit was remitted to the trial court for hearing on merit, and costs were awarded to the Appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the Appellant's claims were time barred for being non-continuing injuries and the suit being filed after the Appellant had retired

Key legal issues

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01

Whether the claims for underpayment, unpaid leave and unpaid savings were continuing injuries under section 90 of the Employment Act

Holding

They were continuing injuries, filed within 12 months of cessation of employment, hence not time barred

Reasoning

The court analysed section 90 of the Employment Act, which requires claims within three years except continuing injuries, which must be filed within 12 months of cessation. Relying on G4S Security Services, The German School Society v Ohany and S S Dhillon Transporters, it held that unpaid leave, underpayment and unpaid savings are continuing injuries. The Appellant filed 8 months after retirement, within the limitation period, so it did not matter that the claims related to periods beyond three years.

p. 6
02

Whether the trial court erred in dismissing the entire claim including heads not covered by the preliminary objection

Holding

Yes; claims filed within three years (gratuity, unpaid salary, refund of deducted amounts) were valid and could not be dismissed wholesale

Reasoning

The court found the non-continuing-injury claims filed within three years were valid and could not be grouped with continuing injury claims. At worst the trial court should have limited the claims to three years rather than dismissing the whole suit. The trial court's wholesale dismissal was therefore erroneous.

p. 5

Legal principles established

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  • Claims such as unpaid leave, underpayment and unpaid savings constitute continuing injuries under section 90 of the Employment Act and must be filed within 12 months after cessation of employment
  • A trial court should not dismiss an entire claim as time barred where only some heads are time barred and others are filed within the limitation period

Court orders

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  1. 1.The ruling of the trial court delivered on 28th July, 2023 is set aside
  2. 2.The suit is remitted to the trial court for hearing on merit
  3. 3.The Appellant is awarded costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrates' Court
CMEL No. E1687 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appellate jurisdiction)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot the Appeal is found merited and succeeds with costs to the Appellant with the ruling of the trial court delivered on 28th July, 2023, set aside. The suit is hereby remitted to the trial court for hearing on merit.
p. 6Disposition
some of the above claims like the unpaid leave, underpayment and unpaid savings forms part of continuous injuries. The claim for the same has to be filed within 12 months after the cessation thereof.
p. 6Continuing injury under section 90
It does not matter that the same are claimed past three years so long the claim was filed within the required period of 12 months
p. 6Limitation for continuing injuries
The trial court therefore erred by dismissing the whole claim as time barred yet the claims which were filed within three years were not continuing injuries and were valid.
p. 5Partial versus wholesale dismissal

Issues in the judgment

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minor

Retirement date stated inconsistently: 5th January 2021 in submissions versus 8th January 2021 in the determination

minor

Retirement letter date stated as 12th December, 2021 though the retirement occurred in January 2021; likely an error for 2020

minor

Savings claim stated as Kshs 43,200/= in one passage and Kshs 43,000/= in another

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, "Wanyonyi v Seneca East Africa Limited (Appeal E178 of 2023) [2025] KEELRC 1353 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1353/eng@2025-05-05

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