The Court of Appeal at Malindi has upheld a lower court’s decision dismissing claims by six former security guards against Mada Holdings, trading as Baobab Sea Lodge Kilifi Limited.
The appellate bench, comprising Justices Gatembu Kairu, K.I Laibuta, and Ngenye-Macharia, delivered its judgment in Civil Appeal No. E034 of 2022, finding the claims time-barred under Kenya’s Employment Act.
The appellants-Daniel Juma, Daniel Mwazonga Kalama, Mark Shida Kenga, Peter Kazungu Kenga, George Mwamuye, and David Wambua-were employed as security guards by the respondent on various dates between 2011 and 2012.
They alleged that in June 2016, they were verbally declared redundant by the hotel management.
The guards claimed unfair termination, non-payment of severance, unpaid house allowance, annual leave, public holiday pay, and compensation for unlawful termination.
The original claim was filed on June 24, 2019, at the Employment and Labour Relations Court (ELRC) in Malindi.
The specific redundancy dates pleaded ranged from June 15 to 24, 2016.
The appellants testified that they had no written contracts and were paid daily wages, usually in two installments per month.
They stated that termination was communicated orally, with management citing financial constraints.
The guards reported the matter to their union, Kenya Hotels and Allied Workers Union, but the respondent did not attend the scheduled reconciliation meeting.
The hotel denied declaring the guards redundant, arguing instead that June was a high season for tourism, and the appellants had deserted duty.
The respondent maintained the guards were casual labourers, free to leave at will, and that any departure was voluntary or due to misconduct, such as sleeping while on duty.
The hotel stated that staff quarters were available, but the guards chose to live elsewhere.
Justice Manani of the ELRC dismissed the claims, finding them time-barred under Section 90 of the Employment Act, which sets a three-year limitation period for employment claims.
The judge noted that, except for the fourth appellant, all claims were filed after the limitation period had lapsed.
The judge held that limitation is a jurisdictional issue, and the court could not assume jurisdiction over the late claims.
The appellants challenged the decision, arguing the trial judge erred in finding the claims time-barred, raising a preliminary objection on a contested fact, and failing to consider the substantive merits of the case.
They contended that the actual dates of termination were unclear, as no written termination letters were issued, and that oral testimony and witness statements should have taken precedence over the dates in the pleadings.
They also argued that the burden of proof of termination dates rested with the employer, who provided no documentary evidence.
The appellants cited case law to argue that a preliminary objection on limitation cannot be upheld where material facts are contested, and that pleadings should not override clarified oral evidence.
They further submitted that the fourth appellant’s circumstances were identical to the others and that the same reasoning should have applied uniformly.
The respondent countered that parties are bound by their pleadings and that the trial court correctly relied on the dates stated in the amended statement of claim.
The respondent maintained that the claims were statute-barred and that the judge properly dismissed them for lack of jurisdiction.
The appellate court reaffirmed the trial judge’s finding that the appeal was time-barred.
The court held that Section 90 of the Employment Act is clear and strict regarding limitation periods.
The judges noted that, except for the fourth appellant, the claims were filed after the statutory three-year window had closed.
The court emphasised that jurisdictional issues can be raised by the court on its own motion and that the trial court was right to dismiss the claims for want of jurisdiction.
"We therefore conclude that the trial court did not have jurisdiction to entertain the claims by the appellants as it was statute barred. Having found that the claims were statute barred, the learned Judge could not move one more step," the bench ruled.
The Court of Appeal dismissed the appeal and upheld the lower court’s dismissal of the claims by the six former security guards against Mada Holdings.
The court said it found no error in the trial court’s application of the law or assessment of the facts, bringing the long-running employment dispute to a close.
"In the upshot, we find no merit in this appeal. We uphold the Judgment of the learned Judge (Manani, J.) delivered on September 27, 2022.
"Accordingly, the appeal is hereby dismissed with costs to the respondent to be paid by the 1st, 2nd, 3rd, 5th and 6th appellants. We make no orders as regards the 4th appellant whose claim was determined in his favour."
