Daniel Inguna Ndatho v Texas Alarms (K) [2015] KEELRC 245 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT LABOUR AND RELATIONS COURT AT MOMBASA

CAUSE NO.98 OF 2015

DANIEL INGUNA NDATHO …………………………………….……CLAIMANT

VERSUS

TEXAS ALARMS (K) …………………………………..……….RESPONDENT

J U D G M E N T

Introduction

1    The claimant brought this suit on 5. 3.2015 claiming terminal dues  plus compensation for unfair termination of his employment by the   respondent in October 2011. It is the claimant’s case that he was not      accorded any hearing before the termination of his employment.

2    The respondent has denied liability for unfair dismissal of the client   and averred that it is the claimant who deserted work from 1. 10. 2011. That after one month follows up, the claimant told the respondent  that he was no longer interested in the job. That the claimant only re-appeared on 18. 4.2012 to return his uniform in the company of union   officials. In addition the respondent raised a preliminary objection      (P.O) to the suit on ground that it is time barred.

3       The suit was heard on 8. 7.2015 when the claimant testified as Cw1 and   the respondent called Mr Benard Odhiambo Aduda as Rw1. Thereafter   both parties filed written submissions.

Analysis or Determination

4       There is no dispute that the claimant was employed by the respondent   as a security guard from 4. 1.2006 until 1. 10. 2011 when he failed to resume duty from his annual leave as required. The issues for determination are;

a) whether the suit is  time barred.

b) whether the claimant deserted work or he was unfairly dismissed by   the respondent

c) whether the reliefs sought should issue.

Time Barred Suit

5     The P.O on time bar was pleaded in the defence and it is therefore a tribal issue herein. The evidence by the Rw1 is that Cw1 deserted work   from 1. 10. 2011 the day he was to report back to work from his annual     leave. That he followed up the claimant for a whole month and stopped after he told him that he was no longer interested in the respondent’s   employment. Consequently according to him the claimant terminated    his employment contract through desertion on 1. 10. 2011. In addition  the defence counsel has submitted that section 90 of the EA provides   in mandatory terms that a suit founded under the Act must be filed   within 3 years. He relied on ICC No. 1189 of 2012 Machuka    Anyona Julius and 5 Others vs Omera Pharmaceuticals Ltd(2014) eKLR in which the court   stuck out a suit filed outside   the 3 years’ time bar.

6       Cw1, on the other hand told the court that he failed to report back     to work on 1. 10. 2011 because the bus in which he was travelling on   29. 10. 2011, broke down and he only reached Mombasa on Sunday   2. 10. 2011, That he reported to work on Monday 3. 10. 2011 but he was   barred from resuming work by Rw1 because he had absented himself   from work.  That after several visits to the office to plead with Rw1 to    reinstate him without success, Cw1 reported the matter to his trade   union who raised the issue with the Director of the respondent on  10. 11. 2011 and he agreed to pay Cw1’s dues. That on 23. 3.2012, Rw1    wrote a letter to Cw1 asking him to return the company uniform. That   after some disagreements Cw1 in the company of 2 union officials    returned the uniform to Rw1. That on 24. 4.2012 the respondent  paid Ksh 5000 through Cw1’s bank account as his terminal dues. Cw1     was dissatisfied    and brought this suit on 5. 3.2015.

7        There is no  doubt that the cause  of action herein arose on 1. 10. 2011  when Cw1 failed to report to work after his annual leave and Rw1  decided that Cw1 was not going to continue working for the respondent. The claimant had the right to sue the respondent and   claim compensation and terminal dues subject to the statute time   bar. Under section 90 of the EA, a claim founded on employment       contract must be filed in court within 3 years next after the day when   the cause of action arose and in case of a continuing breach, damage  or injury, the suit must be filed in court within 12 months from the    time the injury, damages or breach ceased.

8  After careful consideration of the material placed before the court, it obvious that whichever way one looks at the case, the suit has no life.   It has expired and the court lacks jurisdiction to entertain it. First, the  claim for compensation for unfair termination of employment arose on      1. 10. 2011 and is obviously time barred because it expired on 30. 9.2014   before the suit was filed on 5. 3.2015. Second, the claim for employment  terminal dues in respect of annual leave days earned between 2004 and 2009 and the claim for off days worked between January 2004 and   September 2011 is also time barred. The said claims are based on continuing breach, injury, damage or default which ceased in 2009   and September 2011 respectively. Under section 90 of the EA, Supra,  the said claims expired 12 months from the time the injury, damage,   breach and default ceased. In that regard, the claim for accrued leave  expired in December 2010 while the claim for off days worked expired  in September 2012. Consequently, the court must down its tools after   having satisfied itself that it lacks jurisdiction to determine the suit herein for being time barred under section 90 of the EA.

Disposition

10      For the reasons stated above, the suit herein is stuck out. Each party shall bear his or her own costs.

Signed, Dated and Delivered at Mombasa   this   13th day of November 2015.

ONESMUS MAKAU

JUDGE