1. On 15 June 2023, the Principal Magistrate dismissed an action by Olang Dori (the Appellant) on the ground that it was caught up by the limitation prescription in section 90 of the Employment Act, 2007. The Appellant had sought the payment of terminal dues and underpayments after resigning from the employment of Foam Mattresses Ltd (the Respondent) in 2019.
2. The Appellant was dissatisfied and he lodged a Memorandum of Appeal with the Court on 13 July 2023 contending that:
(i) The Learned Trial Magistrate erred in both law and fact in failing to appreciate the totality of evidence placed before her thereby arriving at a wrong decision.
(ii) The Learned Trial Magistrate erred in both law and fact in failing to appreciate that the Appellant was entitled to compensation as per the terms of the CBA that was in effect and that though the period of the CBA expires and the terms between the employer and employee remains the same as per the expired CBA, the same is assumed applicable unless terminated.
(iii) The Learned Trial Magistrate erred in law and fact in failing to consider that the CBA made provision for experienced workers of which the Appellant was, hence higher classification and entitled to the benefits thereof.
(iv) The Learned Trial Magistrate erred in fact and law by failing to consider evidence to make an award for underpayments as against the terms of the CBA which was yet to be revoked.
(v) The Learned Trial Magistrate erred in both law and fact that the Appellant was entitled to the same benefits as per the original CBA whose terms the employer retained even after the expiry of the same.
(vi) The Learned Trial Magistrate erred in failing to consider that the terms and conditions that the Appellant was engaged were not fair labour practices as she worked overtime and without off without compensation whatsoever.
3. The Record of Appeal was filed on 3 November 2023, and the Court gave directions on 16 November 2023.
4. The Appellant filed his submissions on 8 December 2023, and the Respondent on 15 January 2024.
5. The Court has considered the Record and submissions.
Role of the Court in First Appeal
6. In Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, the Court of Appeal stated as follows regarding the duty of a first appellate Court:
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess, and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
7. This Court will keep the interdict in mind.
The law
8. The substantive claims advanced by the Appellant was the failure by the Respondent to implement the terms of various collective bargaining agreements which had raised monthly salaries (underpayments).
9. While dismissing the Appellant’s case, the Principal Magistrate held that the underpayments constituted continuing injury and, therefore, the Appellant should have instituted the claim within 12 months after separation.
10. In rejecting the claims, the Principal Magistrate stated:
… all terminal benefits must be paid to the employee upon exiting employment. These include salary arrears and underpayments. If these are not paid by an employer at the time of exit, the employee must institute a civil action within three years, and if the default is of a continuing injury, like underpayments within twelve (12) months.
The Claimant in this case failed to institute this claim within 12 months
11. The Appellant did not challenge this particular finding by the Principal Magistrate. The question, therefore, whether the Principal Magistrate misapprehended the evidence or fell into errors of law or fact should not arise in the circumstances.
12. The real question is whether the cause of action advanced by the Appellant was caught up by the prescriptive limitation provision in section 90 of the Employment Act, 2007.
13. In Ohany v the German School Society (2017) eKLR, amongst the heads of claim pursued by the Claimant was underpayments (backpay) from 2008. These were payments agreed to be made as part of an additional contract of employment. This Court (differently constituted) allowed the head of the claim, and the Respondent appealed.
14. The Court of Appeal in the German School Society & Ar v Ohany & Ar (2023) KECA 894 (KLR) stated on the issue of backpay:
Normally, a belated service-related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we find and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time-barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90.
15. In the instant case, the Appellant separated from the Respondent in 2019, and he commenced a claim against the Respondent on 16 January 2021, more than 12 months later, alleging underpayment of wages from 2013 to 2018.
16. The cause of action advanced by the Appellant before the Principal Magistrate, a breach of contract/statute constituted a continuing injury, and he should have moved the Court within 12 months of separation. He did not.
17. The Principal Magistrate did not err either in law or fact in rejecting the claim on the ground of limitation.
Conclusion and Orders
18. The Court, consequently, finds no merit in the Appeal and it is dismissed with costs.
2. The Appellant was dissatisfied and he lodged a Memorandum of Appeal with the Court on 13 July 2023 contending that:
(i) The Learned Trial Magistrate erred in both law and fact in failing to appreciate the totality of evidence placed before her thereby arriving at a wrong decision.
(ii) The Learned Trial Magistrate erred in both law and fact in failing to appreciate that the Appellant was entitled to compensation as per the terms of the CBA that was in effect and that though the period of the CBA expires and the terms between the employer and employee remains the same as per the expired CBA, the same is assumed applicable unless terminated.
(iii) The Learned Trial Magistrate erred in law and fact in failing to consider that the CBA made provision for experienced workers of which the Appellant was, hence higher classification and entitled to the benefits thereof.
(iv) The Learned Trial Magistrate erred in fact and law by failing to consider evidence to make an award for underpayments as against the terms of the CBA which was yet to be revoked.
(v) The Learned Trial Magistrate erred in both law and fact that the Appellant was entitled to the same benefits as per the original CBA whose terms the employer retained even after the expiry of the same.
(vi) The Learned Trial Magistrate erred in failing to consider that the terms and conditions that the Appellant was engaged were not fair labour practices as she worked overtime and without off without compensation whatsoever.
3. The Record of Appeal was filed on 3 November 2023, and the Court gave directions on 16 November 2023.
4. The Appellant filed his submissions on 8 December 2023, and the Respondent on 15 January 2024.
5. The Court has considered the Record and submissions.
Role of the Court in First Appeal
6. In Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, the Court of Appeal stated as follows regarding the duty of a first appellate Court:
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess, and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
7. This Court will keep the interdict in mind.
The law
8. The substantive claims advanced by the Appellant was the failure by the Respondent to implement the terms of various collective bargaining agreements which had raised monthly salaries (underpayments).
9. While dismissing the Appellant’s case, the Principal Magistrate held that the underpayments constituted continuing injury and, therefore, the Appellant should have instituted the claim within 12 months after separation.
10. In rejecting the claims, the Principal Magistrate stated:
… all terminal benefits must be paid to the employee upon exiting employment. These include salary arrears and underpayments. If these are not paid by an employer at the time of exit, the employee must institute a civil action within three years, and if the default is of a continuing injury, like underpayments within twelve (12) months.
The Claimant in this case failed to institute this claim within 12 months
11. The Appellant did not challenge this particular finding by the Principal Magistrate. The question, therefore, whether the Principal Magistrate misapprehended the evidence or fell into errors of law or fact should not arise in the circumstances.
12. The real question is whether the cause of action advanced by the Appellant was caught up by the prescriptive limitation provision in section 90 of the Employment Act, 2007.
13. In Ohany v the German School Society (2017) eKLR, amongst the heads of claim pursued by the Claimant was underpayments (backpay) from 2008. These were payments agreed to be made as part of an additional contract of employment. This Court (differently constituted) allowed the head of the claim, and the Respondent appealed.
14. The Court of Appeal in the German School Society & Ar v Ohany & Ar (2023) KECA 894 (KLR) stated on the issue of backpay:
Normally, a belated service-related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we find and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time-barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90.
15. In the instant case, the Appellant separated from the Respondent in 2019, and he commenced a claim against the Respondent on 16 January 2021, more than 12 months later, alleging underpayment of wages from 2013 to 2018.
16. The cause of action advanced by the Appellant before the Principal Magistrate, a breach of contract/statute constituted a continuing injury, and he should have moved the Court within 12 months of separation. He did not.
17. The Principal Magistrate did not err either in law or fact in rejecting the claim on the ground of limitation.
Conclusion and Orders
18. The Court, consequently, finds no merit in the Appeal and it is dismissed with costs.