Wanyonyi v Seneca East Africa Limited (Appeal E178 of 2023) [2025] KEELRC 1353 (KLR)
The bottom line
#Kenya's Employment Court confirmed that claims for unpaid leave, underpayment and savings survive retirement if filed within 12 months.
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 trial court erred in finding that the Appellant's claims were time barred for being non-continuing injuries and the suit being filed after the Appellant had retired
Key legal issues
#Whether the claims for underpayment, unpaid leave and unpaid savings were continuing injuries under section 90 of the Employment Act
They were continuing injuries, filed within 12 months of cessation of employment, hence not time barred
The court analysed section 90 of the Employment Act, which requires claims within three years except continuing injuries, which must be filed within 12 months of cessation. Relying on G4S Security Services, The German School Society v Ohany and S S Dhillon Transporters, it held that unpaid leave, underpayment and unpaid savings are continuing injuries. The Appellant filed 8 months after retirement, within the limitation period, so it did not matter that the claims related to periods beyond three years.
Whether the trial court erred in dismissing the entire claim including heads not covered by the preliminary objection
Yes; claims filed within three years (gratuity, unpaid salary, refund of deducted amounts) were valid and could not be dismissed wholesale
The court found the non-continuing-injury claims filed within three years were valid and could not be grouped with continuing injury claims. At worst the trial court should have limited the claims to three years rather than dismissing the whole suit. The trial court's wholesale dismissal was therefore erroneous.
Legal principles established
#- Claims such as unpaid leave, underpayment and unpaid savings constitute continuing injuries under section 90 of the Employment Act and must be filed within 12 months after cessation of employment
- A trial court should not dismiss an entire claim as time barred where only some heads are time barred and others are filed within the limitation period
Court orders
#- 1.The ruling of the trial court delivered on 28th July, 2023 is set aside
- 2.The suit is remitted to the trial court for hearing on merit
- 3.The Appellant is awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrates' Court
- CMEL No. E1687 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appellate jurisdiction)
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.
In the upshot the Appeal is found merited and succeeds with costs to the Appellant with the ruling of the trial court delivered on 28th July, 2023, set aside. The suit is hereby remitted to the trial court for hearing on merit.
some of the above claims like the unpaid leave, underpayment and unpaid savings forms part of continuous injuries. The claim for the same has to be filed within 12 months after the cessation thereof.
It does not matter that the same are claimed past three years so long the claim was filed within the required period of 12 months
The trial court therefore erred by dismissing the whole claim as time barred yet the claims which were filed within three years were not continuing injuries and were valid.
Issues in the judgment
#Retirement date stated inconsistently: 5th January 2021 in submissions versus 8th January 2021 in the determination
Retirement letter date stated as 12th December, 2021 though the retirement occurred in January 2021; likely an error for 2020
Savings claim stated as Kshs 43,200/= in one passage and Kshs 43,000/= in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyonyi v Seneca East Africa Limited (Appeal E178 of 2023) [2025] KEELRC 1353 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1353/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.