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IndustrialStruck OutNot stated in judgment· [2012] KEIC 8 (KLR)

Kariuki v G4S Security Services Limited (Cause 1296 of 2010) [2012] KEIC 8 (KLR)

Industrial Court of Kenya
26 October 2012
744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court struck out an 11-year-old gratuity claim because it was filed far past the six-year deadline, with no permission to file late.

What this practically means

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Executive summary

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The Claimant sued on 25-10-2010 seeking Kshs.234,756.00 in Employment Service Gratuities from the Respondent. The Respondent raised a Preliminary Objection on grounds that the claim was time barred and that the Claimant's right to sue had lapsed. The objection was argued before Justice S.M. Madzayo on 12-4-2011; judgment was delivered by Onesmus Makau, Judge. The Respondent argued that the cause of action arose on 18-8-1999 upon termination, that the applicable law was the repealed Employment Act, Cap.226 and Section 4(1) of the Limitation of Actions Act (six years), and relied on Langat v Kenya Posts and Telecommunications Corporation. The Claimant relied on protracted correspondence ending 15-3-2005, and on Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd., invoking Section 93(1) of the Employment Act, 2007. The court found that the cause of action accrued on the termination date (18-8-1999) and lapsed on 18-8-2005 under the six-year limitation period. The Motex Knitwear precedent was distinguished. Section 93 of the Employment Act, 2007 was held irrelevant since the cause of action had already lapsed before that Act came into force. The court held the claim filed about eleven years out of time without leave, bad in law, and an abuse of process, with the Claimant's capacity to sue having lapsed. The court struck out the claim with no order as to costs.

Key legal issues

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01

When did the cause of action accrue for purposes of limitation?

Holding

The cause of action accrued on the date of termination of employment (18-8-1999), not on the date of any subsequent correspondence.

Reasoning

The court held that the date of termination of the contract of employment is the date the cause of action arose. Reliance on correspondence falling after termination to extend the accrual date was rejected. The precedent relied on by the Claimant (Motex Knitwear) was found distinguishable because in that case the cause of action was tied to a letter of repudiation, not the termination date of an employment contract.

p. 2
02

Which limitation regime applies?

Holding

The applicable limitation regime is Section 4(1) of the Limitation of Actions Act (six years) as read with the repealed Employment Act, Cap.226; the three-year period under the Employment Act, 2007 does not apply because the cause of action had already lapsed before that Act came into force.

Reasoning

The court held that the cause of action accrued on 18-8-1999 and lapsed on 18-8-2005 under Section 4(1) of the Limitation of Actions Act. The Employment Act, 2007, which reduced the limitation period to three years, came into force on 2-6-2008, well after the cause of action had accrued and lapsed, so Section 93 of that Act was irrelevant.

p. 2
03

Is the claim time barred and is the Claimant's right to sue lapsed?

Holding

Yes. The claim was filed about eleven years after accrual, without leave, and is therefore time barred and an abuse of the court process.

Reasoning

The claim was filed on 25-10-2010, about eleven years after the cause of action accrued on 18-8-1999. No application for leave to sue out of time had been made or explained. The court held the claim bad in law for being time barred, that the Claimant's capacity to sue had lapsed, and that such delay constituted an abuse of the court process.

p. 2

Legal principles established

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  • In employment disputes, the cause of action for gratuity claims arising from termination of employment accrues on the date of termination, and the applicable limitation period is six years under Section 4(1) of the Limitation of Actions Act for contract claims under the repealed Employment Act, Cap.226.
  • Where a claim is filed beyond the limitation period without leave of the court, the claim is bad in law and may be struck out.
  • A claimant's capacity to sue lapses when the claim becomes time barred; filing a claim long after accrual of the right to sue is an abuse of the process of the court.

Court orders

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  1. 1.The claim was struck out with no order as to costs

Authorities

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Legislation

  • Employment Act, Cap.226Repealed statute (whole Act)
  • Limitation of Actions Act, Cap.22Section 4(1)
  • Employment Act, 2007Section 93(1)

Cases cited (2)

  • Langat v Kenya Posts and Telecommunications Corporation
    CACA 144 of 1999
  • Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd.
    HCCC 834 of 2002
Jurisdiction invoked
Jurisdiction as an employment dispute before the Industrial Court; the court stated: 'It is obvious that the dispute concerns employment and, therefore this court has the necessary jurisdiction to entertain it.'

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, "Kariuki v G4S Security Services Limited (Cause 1296 of 2010) [2012] KEIC 8 (KLR)", Case Analysis (2012). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/8/eng@2012-10-26

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