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ELRCStruck Out

Fredrick Omondi Buoga v Crown Berger Kenya Limited [2020] KEELRC 923 (KLR)

Employment and Labour Relations Court
28 May 2020
HWHellen Wasilwa
581 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed you have only three years from dismissal to sue, even if a related criminal case is still ongoing.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 22/10/2015 arguing that the Claimant's suit was incompetent for having been filed out of time contrary to section 90 of the Employment Act, and ought to be struck out in its entirety. The Claimant opposed the objection through a Response filed on 6 February 2020, contending that criminal proceedings instituted against him in 2008 in Madaraka CRC 2938 of 2008 prevented him from filing the claim until they were concluded; the criminal case was withdrawn on 27/9/2012 and he filed this claim on 25/9/2015. The objection was disposed of by written submissions; the Respondent filed submissions on 20/2/2020 while the Claimant filed none. The Respondent relied on the Mukisa Biscuits threshold and on Attorney General & Another vs. Andrew Maina Githinji & Another [2016] eKLR, arguing that the cause of action in employment matters arises upon dismissal, not upon subsequent acquittal or withdrawal of related criminal charges, and that criminal proceedings are no bar to civil proceedings on similar facts. The court agreed, holding that a claim under section 90 must be filed within three years of the cause of action arising, and that the filing is not dependent on the day criminal proceedings terminated. Finding the claim time barred, the court dismissed it in its entirety for want of time and made no order of costs. Judgment was dated and delivered via zoom on 28 May 2020.

Questions the Court framed

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

  1. 1.Whether the preliminary objection that the claim is time barred under section 90 of the Employment Act is merited
  2. 2.Whether the pendency of criminal proceedings against the Claimant suspends the limitation period for filing an employment claim

Key legal issues

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01

Whether the claim filed on 25/9/2015 was time barred under section 90 of the Employment Act

Holding

The claim was time barred; the cause of action arose upon termination of employment in 2008, not upon withdrawal of the criminal case in 2012

Reasoning

Section 90 of the Employment Act requires that civil actions arising out of the Act or a contract of service be commenced within three years of the act, neglect or default complained of. The cause of action in an employment matter arises upon dismissal, not upon the subsequent outcome of criminal proceedings based on similar facts. The claimant's suit, filed four years after termination, was therefore incompetent and was dismissed in its entirety.

p. 2

Legal principles established

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  • An employment claim must be filed within three years of the cause of action arising, and the limitation period runs from termination of employment, not from the termination of related criminal proceedings

Court orders

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  1. 1.The Claim is dismissed in its entirety for want of time
  2. 2.No order of costs

The bench

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

HW
majority

Wrote the judgment

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

Relief refused

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Setting the matter down for hearing as urged by the Claimant

The claim was time barred under section 90 of the Employment Act; criminal proceedings did not suspend the limitation period

p. 2

Costs

There will be no order of costs.

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.

Indeed a Claim of such nature should be filed within 3 years from the time the cause of action arose. The filing is not dependent upon the day the criminal proceedings terminated.
p. 2Limitation under section 90 of the Employment Act
In the circumstances, I find the Claim is time barred. The Preliminary Objection is merited. I therefore dismiss this Claim in its entirety for want of time. There will be no order of costs.
p. 2Final orders - dismissal of claim

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, "Fredrick Omondi Buoga v Crown Berger Kenya Limited [2020] KEELRC 923 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/923/eng@2020-05-28

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