Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in judgment· [2021] KEELRC 2356 (KLR)

David Kizito Makokha v G4s Kenya Limited [2021] KEELRC 2356 (KLR)

Employment and Labour Relations Court
4 March 2021
MMM. Mbaru
931 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a termination claim filed more than three years late, confirming the limitation deadline in section 90 is strict.

What this practically means

#

Executive summary

#
The respondent filed a preliminary objection dated 17th August 2020 contending that the claimant's suit, arising from termination of employment on 12th June 2014 following his arrest and 21 days in custody over a robbery, was time barred under section 90 of the Employment Act, which requires employment claims to be filed within three years of the cause of action arising. The claimant, who filed suit on 5th December 2017, opposed the objection, arguing that his unpaid terminal dues constituted a continuing injury that cannot be lost by lapse of time, relying on Peter M Kariuki v Attorney General, and invoking article 159 of the Constitution to urge that the dispute be heard on the merits rather than defeated on a technicality. The respondent relied on Beatrice Kahai Adagala, Andrew Githiji and Joseph Kiria Kinyua, submitting that limitation runs from the date of termination. The court held that section 90 is couched in mandatory terms and that employment claims, including accrued dues, must be lodged within three years of accrual. Relying on the Court of Appeal's decision in G4S Security Services (K) Limited v Joseph Kamau & 468 others, the court held that unpaid terminal dues do not constitute a continuing injury under the proviso to section 90, and that time spent in criminal custody or other dispute resolution cannot be excluded in computing limitation. As employment terminated on 12th June 2014 and suit was filed on 5th December 2017, the claim was time barred. The suit was struck out, with each party ordered to bear its own costs. Judgment delivered on 4th March 2021 by M. Mbaru, Judge.

Key legal issues

#
01

Whether the suit is time barred under section 90 of the Employment Act

Holding

Yes. The cause of action arose on termination of employment on 12th June 2014; suit filed on 5th December 2017 exceeded the three-year limitation period, so the court lacked jurisdiction.

Reasoning

Section 90 is mandatory: employment claims must be filed within three years of the cause of action arising. The claimant's employment was terminated on 12th June 2014, giving him until 11th June 2017. The suit was filed on 5th December 2017. Following Court of Authority precedent, limitation runs from termination and cannot be extended by time in custody or criminal proceedings.

p. 2
02

Whether terminal dues constitute a continuing injury saving the claim from limitation

Holding

No. Claims arising from termination, including accrued dues, accrue at termination and must be claimed within the statutory period; they are not a continuing injury.

Reasoning

The claimant argued that unpaid terminal dues are a continuing injury that cannot be lost by time. The court relied on the Court of Appeal's decision in G4S Security Services, which held that unpaid terminal dues do not constitute a continuing injury under the proviso to section 90, and that any continuing-injury claim must be filed within twelve months of cessation.

p. 1

Legal principles established

#
  • Claims arising from termination of employment must be filed within three years from the date the cause of action arose under section 90 of the Employment Act.
  • Unpaid terminal dues following termination do not constitute a continuing injury under the proviso to section 90 of the Employment Act.
  • Time spent undertaking criminal proceedings or other dispute resolution mechanisms cannot be excluded when computing the limitation period.

Court orders

#
  1. 1.The suit is struck out as time barred under section 90 of the Employment Act
  2. 2.Each party shall pay own costs
Jurisdiction invoked
Employment Act, section 90 (limitation for employment claims); Constitution article 159 invoked by claimant on substantives justice

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Kizito Makokha v G4s Kenya Limited [2021] KEELRC 2356 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2356/eng@2021-03-04

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