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ELRCDismissedCause instituted on 17 March 2015 (Employment and Labour Relations Court)

Reuben Nyambaso Nyambagera v Inter Security Services Ltd [2017] KEELRC 2002 (KLR)

Employment and Labour Relations Court
22 November 2017
694 words in judgment
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The bottom line

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The Employment Court in Eldoret let an employee's late unfair dismissal claim proceed because the employer couldn't prove when the job actually ended.

What this practically means

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Executive summary

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The Claimant sued the Respondent on 17 March 2015 alleging breach of contract of employment. The Respondent filed a Response and a Notice of Preliminary Objection contending that the cause of action was time barred under section 90 of the Employment Act, 2007, the Claimant having been dismissed in November 2008 for absconding duty, and sought that the suit be struck out with costs. The Claimant resisted, asserting that he remained on suspension because the Respondent never communicated whether his employment was terminated, and that any continuing injury took the claim outside the three-year limitation period. The Court held that suspension must have a contractual basis and that unilateral suspension without such basis is itself a breach of contract, so any claim based on the suspension should have been brought within three years. However, a legal difficulty arose because the Respondent alleged desertion but never pleaded when or how the dismissal occurred. Since a repudiated contract is terminated only upon acceptance by the innocent party, the Respondent would need to lead evidence at the hearing to show whether it accepted the repudiation. The objection therefore raised disputed factual questions and failed the Mukisa Biscuits threshold. The preliminary objection was dismissed, both parties were directed to file amended pleadings to disclose the full facts, and costs of the objection were awarded in the cause. Judgment was delivered in Eldoret on 22 November 2017 by Radido Stephen, Judge.

Questions the Court framed

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

  1. 1.Whether the claim is time barred under section 90 of the Employment Act, 2007, having been filed more than three years after the alleged dismissal in November 2008
  2. 2.Whether the alleged suspension of the Claimant amounted to a continuing injury taking the claim outside the limitation period
  3. 3.Whether the preliminary objection met the threshold in Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd

Key legal issues

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01

Whether the preliminary objection on limitation could succeed on the pleaded material

Holding

The objection failed because it did not rest on pleaded facts; the Respondent had to lead evidence on acceptance of repudiation at the hearing

Reasoning

The Respondent alleged the Claimant deserted work in November 2008 but never expressly stated when or how he was dismissed. Under the common law, a repudiated contract is not terminated until the innocent party accepts the repudiation. Whether the Respondent accepted the repudiation is a question of evidence that can only be presented at the hearing, so the objection raised disputed factual matters contrary to the Mukisa Biscuits threshold.

p. 2
02

Whether the alleged subsisting suspension constituted a continuing injury exempting the claim from the three-year limitation period

Holding

If the suspension was in breach of contract, the claimant should have sued within three years; the continuing injury argument did not save the claim

Reasoning

The Court accepted that suspension must have a contractual basis and that unilateral suspension without such basis is a breach of contract. In so far as the Claimant alleged the suspension was in breach of contract, the breach accrued when it occurred, and proceedings ought to have been instituted within three years of that breach.

p. 1

Legal principles established

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  • Unilateral suspension of an employee without contractual authority constitutes breach of contract
  • A repudiated contract is not terminated until the repudiation is accepted by the innocent party

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The Claimant to file and serve an Amended Memorandum of Claim on or before 30 November 2017
  3. 3.The Respondent to file and serve an Amended Response on or before 15 December 2017
  4. 4.If the Claimant fails to comply with order (ii), the Cause shall stand struck out
  5. 5.Costs of the objection in the Cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 invoked on limitation)

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.

The preliminary objection is dismissed.
p. 2disposition
the preliminary objection herein does not meet the threshold set out in the case of Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696
p. 2preliminary objection threshold
under the common law, a repudiated contract is not terminated unless and until the repudiation is accepted by the innocent party
p. 2repudiation of employment contract
If the Claimant fails to comply with (ii) above, the Cause shall stand struck out.
p. 2compliance order

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, "Reuben Nyambaso Nyambagera v Inter Security Services Ltd [2017] KEELRC 2002 (KLR)", Case Analysis (2017). Cause instituted on 17 March 2015 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2002/eng@2017-11-22

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