Ogoda (Suing o Behalf of the Estate of Gordon Ogada Ochieng (Deceased)) v Kenya Railways Corporation (Cause 97 of 2013) [2025] KEELRC 2185 (KLR)

5. The Claimant’s case is that at the time of his death on 27th June 2008, Ochieng had not been paid his dues in full. It is pleaded that upon his retirement, the deceased was paid gratuity in instalments of Kshs. 10,000 which stopped. 6. According to the claim, the deceased was entitled to the following: 7. a. Transport to his home; b. Computation of housing factor; c. Gratuity payment. The claim is tabulated as follows: a. Kshs. 10,000 as transport costs; b. Housing factor (Kshs. 250 per month x 34 years x 12 months)=102,000; c. Gratuity payment at Kshs. 383,520; d. Costs plus interest. The Respondent’s Case 8. In its Statement of Defence dated 3rd April 2017, the Respondent states that the deceased was not pensionable and was paid his gratuity in full, in addition to his other entitlements upon retirement. 9. Moreover, the Respondent terms the claim as incompetent on account of limitation of action. Findings and Determination 10. The first issue for determination in this case is whether the Claimant’s claim is statute barred. In the Court of Appeal decision in Maersk Kenya Limited v Murabu Chaka Tsuma [2017] eKLR it was afirmed that with regard to employment claims arising prior to the enactment of the Employment Act, 2007 the applicable limitation law is the Limitation of Actions Act. 11. The Respondent submits that the claim was brought long after the lapse of the six-year statutory period set out in Section 4(1) of the Limitation of Actions Act, which provides as follows: 1. The following actions may not be brought after the end of six years from the date on which the cause of action accrued: a. Actions founded on contract b. … 12. In the submissions filed on behalf of the Claimant, an attempt was made to argue that the accrual of the cause of action did not coincide with the retirement date of Gordon Ogada Ochieng. This argument is however at variance with well-established jurisprudence. 13. In its decision in Benjamin Wachira Ndiithi v Public Service Commission & another [2014] KEELRC 1060 (KLR) this Court stated the following: “ On the accrual date of the cause of action which has a direct bearing on running of time, the Claimant takes the view that the cause of action in his case did not accrue until 8th August 2006 when he was notified that his employment file had been closed, thus dashing any hopes of his reinstatement to the public service. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2185/eng@2025-07-24 2

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This Court has however taken a difierent view on this matter in the case of Hilarion Mwabolo vs Kenya Commercial Bank [2013] eKLR to the efiect that accrual of the cause of action in a claim emanating from an employment contract takes efiect from the date of termination as stated in the letter communicating the termination.” 14. It is my considered view that the above reasoning would apply in all forms of termination of the employment relationship, including retirement as in the case now before me. 15. That said, I find and hold that the accrual date of the cause of action in these proceedings is 31st December 2003, when Gordon Ogada Ochieng retired from the Respondent’s service. The claim filed in 2013 was therefore way out of time. 16. As to whether the Court has any leeway to extend time, I am bound by Divecon v Samani (1995-1998) EA 48 where the Court of Appeal declared that no court has authority to extend time within which a suit based on contract may be filed. 17. With the foregoing in view, this is the end of the road for this claim. Having been filed out of time, I have no jurisdiction to delve into its merits. 18. In the result, I proceed to strike out the claim with an order that each party will bear their own costs. 19. Orders accordingly. DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JULY 2025 LINNET NDOLO JUDGE Appearance: Mr. Onyango for the Claimant Mr. Kimathi for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2185/eng@2025-07-24 3

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