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ELRCDismissedNot stated in judgment· [2019] KEELRC 501 (KLR)

James Nyauma Nyandega v Bob Morgan Services Limited [2019] KEELRC 501 (KLR)

Employment and Labour Relations Court
1 November 2019
BOByram Ongaya
362 words in judgment
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The bottom line

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A Kenyan employee lost his dismissal case because he filed three years and ten months after suspension — past the Employment Act's strict three-year deadline.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 01.06.2000, was indefinitely suspended from duty by letter dated 22.05.2014 following allegations of yard breaking. He was charged with the offence of yard breaking and stealing contrary to section 306(a) of the Penal Code and acquitted on 04.04.2017 under section 210 of the Criminal Procedure Code. He pleaded that the indefinite suspension amounted to summary dismissal and filed a memorandum of claim on 29.03.2018, later amending it on 12.11.2018. The respondent filed a preliminary objection on 02.09.2019 through Wainaina Ireri & Company Advocates LLP, contending that the suit was time barred under section 90 of the Employment Act, 2007. The court found that the claimant himself pleaded that the suspension of 22.05.2014 was a summary dismissal, making that date the undisputed date the employment relationship ended and the date of the cause of action. The suit filed on 29.03.2018 fell outside the three-year limitation period. Relying on the Court of Appeal's decision in Attorney General & Another v Andrew Maina Githinji & Another [2016] eKLR, the court held that the limitation period in section 90 is mandatory and that an intervening criminal prosecution does not stop time from running. The preliminary objection was upheld and the suit dismissed with costs. Judgment was delivered at Nairobi on 1st November 2019 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the suit was time barred under section 90 of the Employment Act, 2007

Holding

Yes - the cause of action accrued on 22.05.2014 when the indefinite suspension took effect as summary dismissal, and the claim filed on 29.03.2018 was outside the three-year limitation period

Reasoning

The claimant pleaded that the indefinite suspension of 22.05.2014 amounted to summary dismissal. The court found this was the undisputed date the employment relationship ended and thus the cause of action date. The claim, filed on 29.03.2018, was filed long after the three years under section 90 had lapsed. The intervening criminal prosecution, which ended in acquittal under section 210 of the Criminal Procedure Code on 04.04.2017, did not stop limitation from running per the Court of Appeal's decision in Attorney General & Another v Andrew Maina Githinji & Another.

p. 2

Legal principles established

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  • The time of limitation in section 90 of the Employment Act, 2007 is mandatory and an intervening criminal prosecution does not adjourn or stop the time from running
  • Where an employer's indefinite suspension is pleaded and treated as summary dismissal, the date of the suspension is the date the employment relationship ended and the date of the cause of action for limitation purposes

Court orders

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  1. 1.The preliminary objection filed for the respondent on 02.09.2019 and dated 27.08.2019 is upheld
  2. 2.The suit is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Employment Act, 2007, section 90 on limitation invoked)

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, "James Nyauma Nyandega v Bob Morgan Services Limited [2019] KEELRC 501 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/501/eng@2019-11-01

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