Onyango v Maseno West Sacco Society Ltd (Cause 20 "A" of 2013) [2024] KEELRC 603 (KLR)
The bottom line
#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 Court could revisit the plea of limitation previously declined by a differently constituted Court
- 2.Whether the action is statute-barred under section 90 of the Employment Act, 2007
- 3.Whether the Claimant proved unfair termination of employment
- 4.Whether the Claimant proved unpaid salaries for October 2008, severance pay and salary in lieu of notice
Key legal issues
#Limitation under section 90 of the Employment Act, 2007
The action was statute-barred; the Claimant filed some 5 years after dismissal on 7 October 2008, beyond the 3-year limit
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.
Unfair termination of employment
Not considered; the Claimant pleaded unfair termination but sought none of the primary reliefs appurtenant to it
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.
Unpaid October 2008 salaries, severance pay and notice pay
Considered only on assumption limitation was wrong; October 2008 wages were admitted unpaid, but severance and 3 months' notice lacked foundation
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).
Legal principles established
#- 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
#- 1.The Court finds and declares the action statute barred by dint of section 90 of the Employment Act, 2007
- 2.The Cause is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007)
Relief refused
#Unpaid salaries from October 2008
Though the Respondent's witness admitted the wages were unpaid, the whole action was statute-barred
Severance pay
Severance pay is due upon redundancy and the Claimant laid no foundation for it; the head of claim was for dismissal
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
Unfair termination reliefs
Claimant pleaded unfair termination but sought none of the primary reliefs appurtenant to it
Costs
The Cause is struck out with costs (to the Respondent)
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.
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.
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.
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.
The Court will, therefore, not embark on an endeavour that is not supported by the pleaded reliefs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.