Seth Ndeda v Lavington Security Guards Limited [2017] KEELRC 739

REPUBLIC OF KENYA EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI AT NAIROBI CAUSE NO. 1132 OF 2014 SETH NDEDA…….…………………..…………..........CLAIMANT VERSUS LAVINGTON SECURITY GUARDS LIMITED…....RESPONDENT RULING 1. The respondent herein raised a preliminary objection to the effect that the suit herein is statute barred by virtue of section 90 of the Employment Act in that the cause of action as pleaded accrued in August 2010 when the claimant was verbally informed that his services had been terminated yet the suit herein, was filed on 9th July, 2014 which was more than 3 years stipulated by section 90 of the Employment Act within which claims based on the Act or Contract of employment should be brought. 2. During the pendency of the preliminary objection, the claimant brought an application seeking to amend the memorandum of claim to plead the correct date when the cause of action accrued. In the application for amendment, the claimant stated that the cause of action accrued in December 2012 when the charges against him were dismissed and his employer dismissed him from employment. According to the claimant, upon arrest in June 2010, he was placed on suspension awaiting the outcome of the criminal case. 3. The respondent so far has not filed a response to the claim herein to show the factual basis upon which it relied to aver that the claim it statute barred. For instance, the respondent has not exhibited any letter or memorandum showing that the claimant was dismissed in August, 2010. It merely relied on the averments by the claimant which averments the claimant seeks to recant by the intended amendment. To err is human, so the claimant may have made a mistake in pleading the events herein. This is capable of curring through an amendment. 4. Plea of limitation although goes to jurisdiction of the court is more of an arithmetic question than a point of law. It is determined based on facts. This has not been brought out clearly by the respondent. The court will therefore disallow the preliminary objection at the moment and allow the claimant’s application for amendment dated 21st September, 2016 with leave to the respondent to file and serve a response to the claim herein within 21 days from the date hereof. 5. The respondent shall however have the liberty to renew the objection on limitation period once it has filed a memorandum of response together with supporting documents. 6. It is so ordered. Dated at Nairobi this 17th day of March 2017 Abuodha J. N. Judge Delivered this 17th day of March 2017

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