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ELRCStruck OutNot stated in judgment (Cause filed 19 February 2013)

Onyango v Maseno West Sacco Society Ltd (Cause 20 "A" of 2013) [2024] KEELRC 603 (KLR)

Employment and Labour Relations Court
13 March 2024
1,065 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Johnson Oduor Onyango sued Maseno West Sacco Society Ltd on 19 February 2013 for breach of contract, seeking unpaid salaries from October 2008, severance pay, three months' salary in lieu of notice and costs. The Cause had a tortuous history: a 2017 judgment ordered reinstatement though not sought; a review application led to a second judgment in 2018; the Court of Appeal in May 2023 allowed an appeal and directed that the review be heard by a different judge. This Court allowed the review and on 11 December 2023 directed the Cause be heard afresh; the hearing took place on 6 February 2024. The Respondent had pleaded limitation. The Court held it could revisit the limitation plea because the Cause was to be heard afresh, despite an earlier ruling dismissing the objection. The Claimant acknowledged dismissal on 7 October 2008 and filing on 19 February 2013, about five years later, beyond the three-year limit in section 90 of the Employment Act, 2007. Prior proceedings before the Cooperative Tribunal were irrelevant as that forum lacked jurisdiction. On the assumption limitation was wrongly decided, the Court considered the heads of claim: it would have allowed the October 2008 wages (admitted unpaid), but severance pay is due only on redundancy and none was founded, and no contract or statutory basis for three months' notice pay was shown. Unfair termination reliefs were not pursued as pleaded. The Court declared the action statute-barred and struck out the Cause with costs.

Questions the Court framed

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

  1. 1.Whether the Court could revisit the plea of limitation previously declined by a differently constituted Court
  2. 2.Whether the action is statute-barred under section 90 of the Employment Act, 2007
  3. 3.Whether the Claimant proved unfair termination of employment
  4. 4.Whether the Claimant proved unpaid salaries for October 2008, severance pay and salary in lieu of notice

Key legal issues

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01

Limitation under section 90 of the Employment Act, 2007

Holding

The action was statute-barred; the Claimant filed some 5 years after dismissal on 7 October 2008, beyond the 3-year limit

Reasoning

The Claimant was dismissed on 7 October 2008 and sued on 19 February 2013, about five years later. Section 90 of the Employment Act prescribes 3 years. Prior litigation before the Cooperative Tribunal was irrelevant as that forum lacked jurisdiction over the dispute. Though limitation had been declined earlier, the direction for a fresh hearing allowed revisiting it.

p. 3
02

Unfair termination of employment

Holding

Not considered; the Claimant pleaded unfair termination but sought none of the primary reliefs appurtenant to it

Reasoning

The Memorandum of Claim pleaded unfair termination but did not seek the primary reliefs, save salary in lieu of notice. Even the draft amended Memorandum omitted them and amendment was declined. The Court will not embark on an endeavour unsupported by pleaded reliefs.

p. 3
03

Unpaid October 2008 salaries, severance pay and notice pay

Holding

Considered only on assumption limitation was wrong; October 2008 wages were admitted unpaid, but severance and 3 months' notice lacked foundation

Reasoning

The Respondent's witness admitted the October 2008 wages were unpaid. Severance pay is due only on redundancy and none was established. No contract or legal framework supporting 3 months' notice pay was produced, against the statutory 1 month under section 35(1)(c).

p. 3

Legal principles established

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  • Under section 90 of the Employment Act, 2007, an action for employment claims must be commenced within 3 years of the cause of action accruing
  • Where a Cause is directed to be heard afresh, the Court may revisit a limitation plea previously declined by a differently constituted Court

Court orders

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  1. 1.The Court finds and declares the action statute barred by dint of section 90 of the Employment Act, 2007
  2. 2.The Cause is struck out with costs

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 over employment dispute (Employment Act, 2007)

Relief refused

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Unpaid salaries from October 2008

Though the Respondent's witness admitted the wages were unpaid, the whole action was statute-barred

p. 3

Severance pay

Severance pay is due upon redundancy and the Claimant laid no foundation for it; the head of claim was for dismissal

p. 3

3 months' salary in lieu of notice

No evidential or legal foundation for 3 months as opposed to the 1 month under section 35(1)(c) of the Employment Act

p. 3

Unfair termination reliefs

Claimant pleaded unfair termination but sought none of the primary reliefs appurtenant to it

p. 3

Costs

The Cause is struck out with costs (to the Respondent)

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.

Flowing from the above the Court finds and declares the action herein statute barred by dint of section 90 of the Employment Act, 2007, and the Cause is struck out with costs.
p. 3Final orders - striking out for limitation
By dint of section 90 of the Act, the Claimant ought to have commenced action within 3 years. He moved the Court after the lapse of the prescribed limitation period.
p. 2Limitation period under the Employment Act
It is of no relevance that the parties were battling before a difierent forum which in any case did not have jurisdiction over the instant dispute.
p. 2Irrelevance of prior Tribunal proceedings to limitation
The Court will, therefore, not embark on an endeavour that is not supported by the pleaded reliefs.
p. 3Reliefs must be pleaded

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, "Onyango v Maseno West Sacco Society Ltd (Cause 20 "A" of 2013) [2024] KEELRC 603 (KLR)", Case Analysis (2024). Not stated in judgment (Cause filed 19 February 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/603/eng@2024-03-13

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