Reuben Nyambaso Nyambagera v Inter Security Services Ltd [2017] KEELRC 2002 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the alleged suspension of the Claimant amounted to a continuing injury taking the claim outside the limitation period
- 3.Whether the preliminary objection met the threshold in Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
Key legal issues
#Whether the preliminary objection on limitation could succeed on the pleaded material
The objection failed because it did not rest on pleaded facts; the Respondent had to lead evidence on acceptance of repudiation at the hearing
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.
Whether the alleged subsisting suspension constituted a continuing injury exempting the claim from the three-year limitation period
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection is dismissed
- 2.The Claimant to file and serve an Amended Memorandum of Claim on or before 30 November 2017
- 3.The Respondent to file and serve an Amended Response on or before 15 December 2017
- 4.If the Claimant fails to comply with order (ii), the Cause shall stand struck out
- 5.Costs of the objection in the Cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 invoked on limitation)
Quotable passages
#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.
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
under the common law, a repudiated contract is not terminated unless and until the repudiation is accepted by the innocent party
If the Claimant fails to comply with (ii) above, the Cause shall stand struck out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.