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Kenya Tertiary & Schools Workers Union (KETASWU) v Rocky Driving School (Cause 95 of 2019) [2023] KEELRC 1957 (KLR) (31 July 2023) (Ruling)
Neutral citation:
[2023] KEELRC 1957 (KLR)
Republic of Kenya
Cause 95 of 2019
CN Baari, J
July 31, 2023
Between
Kenya Tertiary & Schools Workers Union (Ketaswu)
Claimant
and
Rocky Driving School
Respondent
Ruling
1.The Respondent lodged a Notice of Preliminary Objection dated February 27, 2023, and filed on similar date. Its contention is that the Claimant’s supplementary statement of claim has no basis in law and is fatally defective.
2.It is its further aversion that the supplementary statement of claim referred to above, is statute barred.
3.Parties sought to canvass the objection by way of written submissions. The Respondent filed submissions on May 26, 2023. The Claimant did not.
The Respondent’s Submissions
4.It is submitted for the Respondent that contrary to Rule 14 (7) of the Employment and Labour Relations Court (Procedure) Rules, the Claimant through his supplementary statement, is only seeking to introduce a new cause of action through the back door as the Court did not seek any clarification on the claim.
5.It is its further submission that the suit herein, only concerned transfer of two of the Claimant’s members, namely; Samwel Onyiego and Hassan Mugo and not their termination. The Respondent had reliance in Central Kenya Limited v Trust Bank Limited & 5 Others (2000) eKLR to buttress this position.
6.It is the Respondent’s submission that the new cause now sought to be introduced, is already time barred on the basis that the pleadings indicate that the grievants were terminated on November 20, 2019.
7.It is submitted that the supplementary statement of claim was filed on December 16, 2019, about a month after three years since the accrual of the cause of action, rendering the claim time barred under Section 90 of the Employment Act, 2007. It sought reliance in the holding of Justice Mbaru in John Kiiru Njiru v University of Niarobi (2021) eKLR to support this position.
8.The Respondent prays that the Claimant’s supplementary statement of claim is struck out with costs.
Analysis and determination
9.I have considered the Respondent’s preliminary objection, its submissions and the parties’ pleadings. The issues that fall for determination are: -i.Whether the Claimant’s claim is fatally defectiveii.Whether the suit is statute barred
Whether the Claimant’s claim is fatally defective
10.In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection was aptly described as follows: -
11.Rule 14 (7) of the Employment and Labour Relations Court (Procedure)Rules, states thus:
12.I do agree with the Respondent’s submission that the Claimant ought to have filed an amended statement of claim, instead of a supplementary statement of claim as it did.
13.Further, looking at both the supplementary statement of claim and the initial claim lodged by the Claimant, the latter is a completely different suit, and which then confirms the Respondent’s objection. The initial suit only sought to stop transfers as well as stop intimidation and harassment of the grievants, whereas the supplementary claim seeks declaratory orders and compensation among other reliefs.
14.Where there is substantive change of circumstances such as those herein, the Claimant ought to have either sought leave to file an amended statement of claim or file a new suit all together. The supplementary statement cannot hold to meet the purpose it intended to achieve.
15.In Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No 149 of 1991 the Court held thus on amendment of pleadings: -
16.I thus return that the supplementary claim filed by the Claimant lacks legal basis and does not hold as an amendment of the Claimant’s claim.
Whether the suit is statute barred**
17.The Respondent contends that the suit herein is time barred. The claim is premised on a contract of service which by law has a limitation period of three years. Section 90 of the Employment Act, 2007, states:
18.In Gathoni v Kenya Co-operative Creameries Ltd Civil Application No 122 of 1981, Potter, J observed in obiter that:
19.The issue of the grievants’ termination, arises from the supplementary statement of claim where it is averred that the grievants were terminated from service on November 20, 2019. The supplementary statement was filed on December 13, 2022, about 23 days after the lapse of the three years limitation period.
20.The Court of Appeal in Attorney General v Andrew Maina Githinji & Another (2016) eKLR, held that once the employee received the termination letter, the termination took effect and the cause of action accrued, and that was the date time began to run.
21.In Samson Leteipa Ole Kimongo v Inspector General, National Police Service & 2 Others [2022] eKLR, Justice O. Makau opined: -
22.In light of the foregoing, I find and hold that the Claimant’s claim is statute barred.
23.I conclude by striking out the Claimant’s suit in its entirety with costs to the Respondent.
24.Orders accordingly.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 31ST DAY OF JULY, 2023.CHRISTINE N. BAARIJUDGEAppearance:N/A for the ClaimantN/A for the Respondent
