Nicholas Shikuku Omukuba v Co-operative Bank of Kenya Ltd [2018] KEELRC 2464 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 2071 OF 2017

NICHOLAS SHIKUKU OMUKUBA                        CLAIMANT

v

CO-OPERATIVE BANK OF KENYA LTD        RESPONDENT

RULING

1. For determination is a motion dated 8 January 2018 by the Respondent seeking

1. This Honourable Court be pleased to strike out the Statement of Claim dated 12th October, 2017 as against the Respondent.

2. This Honourable Court be please to dismiss the said Claim as against the Respondent.

3. The costs of this application and of the Cause be borne by the Claimant.

2. The Claimant filed grounds of opposition to the application on 18 January 2018, and the Court took submissions on 29 January 2018.

3. The facts are not in dispute.

4. The Claimant’s employment contract was terminated on 10 April 2010.

5. On or around 12 April 2010, the Claimant was charged with various counts of stealing by servant contrary to section 281 of the Penal Code/stealing contrary to section 275 of the Penal Code.

6. After a trial spread over 6 years, the trial Court, in a judgment delivered on 14 June 2016 acquitted the Claimant under section 215 of the Criminal Procedure Code.

7. On 17 October 2017, the Claimant instituted the instant proceedings against the Respondent and he stated the Issues in Dispute as the determination of the factual issue as to whether the Claimant’s employment was unlawfully and unfairly terminated.

8. The Claimant suffered a legal injury/wrongful act on 10 April 2010.

9. In terms of section 90 of the Employment Act, 2007 he should have commenced legal proceedings on or before 10 April 2013. He did not.

10. On that score, the cause of action presented before Court is caught up by the law of limitation.

11. If the cause of action amounted to a continuing injury as submitted by the Claimant, and which continuing injury  ceased with the acquittal (and the Court does not buy that argument) and therefore falling under the second limb of the limitation provision of section 90 of the Employment Act, 2007, the 12 months lapsed on or around 14 June 2017.

12. Even in such a case, the cause of action would have been caught up by the law of limitation.

13. Limitation is not merely a procedural technicality but a jurisdictional question.

14. Just as time for purposes of limitation does not stop running because parties are engaged in out of court negotiations (see Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Ar. (2016) eKLR), the pendency of criminal proceedings on similar facts would not in my view stop time from running for purposes of limitation.

15. The Court therefore concludes that the causes of action presented by the Claimant are caught up by the law of limitation and orders that the Memorandum of Claim filed in Court on 17 October 2017 be struck out with no order as to costs.

Delivered, dated and signed in Nairobi on this 16th day of February 2018.

Radido Stephen

Judge

Appearances

For Claimant             Mr. Moigi instructed by Ochanda Onguru & Co. Advocates

For Respondent       Mr. Kiche instructed by Triple OKLaw LLP, Advocates

Court Assistant         Lindsey