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Court of AppealPartially AllowedCivil Appeal No. 6 of 2015

Kenya Airports Authority v Shadrack Abraham Kisongochi [2016] KECA 481 (KLR)

Court of Appeal of Kenya
31 May 2016
David Kenani MaragaD. K. MaragaDMD. K. MusingaSKS. Gatembu Kairu
2,038 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out an employee's Kshs 4.8 million award because his contract claim was filed too late and courts cannot extend time limits for contract cases.

What this practically means

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Executive summary

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This Court of Appeal at Kisumu appeal, decided unanimously by Maraga, Musinga and Gatembu Kairu, JJA, concerned an employee of Kenya Airports Authority whose services were terminated on 31st January 2006 before the finalisation of criminal charges against him, in alleged breach of clause 30.8 of a Collective Bargaining Agreement. After acquittal, he was re-engaged in April 2011 on lower terms, and he sued in 2014 for reinstatement to his former position plus withheld salary, allowances and pension dues. The Industrial Court (Wasilwa, J.) found the termination unlawful, ordered reinstatement and awarded Kshs. 4,831,652 in withheld dues. On appeal, the appellant contended that the claim, filed on 28th February 2014, was statute barred, that leave to file out of time had been granted without jurisdiction, that the Employment Act, 2007 had been wrongly applied retrospectively to a 2006 cause of action, and that the 2011 letter created a fresh contract rather than reinstatement. The Court allowed the appeal solely on the jurisdictional ground: sections 27 and 28 of the Limitation of Actions Act permit extension of time only for tort claims of negligence, nuisance or breach of duty involving personal injury, not contract claims governed by section 4(1). The cause of action accrued on the termination date, and the trial court's grant of leave to file out of time was therefore a nullity. The judgment of the Industrial Court was set aside in its entirety, with the respondent bearing costs both here and below. Remaining grounds were not determined as superfluous.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court had jurisdiction to grant leave to institute the suit out of time under sections 27 and 28 of the Limitation of Actions Act in a claim founded on contract
  2. 2.Whether the provisions of the Employment Act, 2007 applied retrospectively to a cause of action arising in January 2006
  3. 3.Whether the termination of the respondent's employment was unlawful and whether the letter of 6th April 2011 amounted to reinstatement or a fresh contract

Key legal issues

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01

Jurisdiction to extend limitation period for contract claims

Holding

The trial court had no jurisdiction to grant extension of time because sections 27 and 28 of the Limitation of Actions Act apply only to tort claims; the respondent's claim was founded on contract and governed by section 4(1).

Reasoning

Section 27 of the Limitation of Actions Act is confined to actions in tort based on negligence, nuisance or breach of duty where personal injuries are claimed. Section 28 merely provides procedure for section 27 applications. The respondent's claim was based on breach of a collective bargaining agreement and contract, so the extension application was incompetent. The word 'may' in section 4(1) does not confer a discretion to permit what statute expressly prohibits. An extension granted without jurisdiction is a nullity and renders the entire suit legally baseless.

p. 4
02

Date of accrual of the cause of action

Holding

The cause of action accrued on 31st January 2006, the date of termination, not on 6th April 2011 when the respondent was re-engaged on different terms.

Reasoning

The respondent's grievance concerned the termination of his employment before finalisation of criminal charges, in breach of clause 30.8 of the Collective Bargaining Agreement. That breach occurred on the termination date. The subsequent offer of a fresh contract on lower terms did not create a new cause of action or amount to reinstatement to the former position, so the six-year limitation period ran from 31st January 2006 and expired before the suit was filed on 28th February 2014.

p. 4
03

Retrospective application of the Employment Act, 2007 and lawfulness of termination

Holding

Not determined, being rendered superfluous by the finding on jurisdiction.

Reasoning

Having concluded that the suit was filed without the trial court having jurisdiction to extend the limitation period, the Court declined to determine the remaining grounds, including whether the Employment Act, 2007 applied retrospectively and whether the termination was unlawful, since the suit had no legal basis at all.

p. 4

Legal principles established

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  • Section 27 of the Limitation of Actions Act permits extension of time only for actions founded on tort (negligence, nuisance or breach of duty causing personal injury); a court has no jurisdiction to extend time for filing a suit founded on contract.
  • A court's jurisdiction flows only from the Constitution or legislation and it cannot arrogate to itself jurisdiction exceeding that conferred by law.
  • Where a court acts without jurisdiction, its findings are a nullity.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the Industrial Court made on 17th September 2014 is set aside in its entirety
  3. 3.The respondent shall bear the costs of the suit before the trial court as well as the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
DM
majority
SK
majority
On appeal from
Industrial Court of Kenya at Kisumu
Industrial Court Case No. 20 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the Industrial Court (as then constituted)

Relief refused

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Respondent's award of reinstatement and withheld salaries, allowances and pension dues

The suit was statute barred and the trial court had no jurisdiction to extend time for a contract claim, rendering the suit a nullity

p. 4

Costs

The respondent shall bear the costs of the suit before the trial court as well as the costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This appeal is hereby allowed and the judgment of the Industrial Court made on 17 th September, 2014 is set aside in its entirety.
p. 5Final orders - disposition
The respondent shall bear the costs of the suit before the trial court as well as the costs of this appeal.
p. 5Costs order
This section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other cause of action other than those in tort.
p. 4Limitation of Actions Act, section 27
Jurisdiction is the jurisprudential bedrock of any court decision and without it, as in this case, a court’s findings are as nullity.
p. 4Jurisdiction
We do not agree with Mr. Yogo that the use of the word “may” in section 4 (1) implies that the trial court had discretion to do that which is expressly prohibited by statute.
p. 4Statutory interpretation of section 4(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Airports Authority v Shadrack Abraham Kisongochi [2016] KECA 481 (KLR)", Case Analysis (2016). Civil Appeal No. 6 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/481/eng@2016-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.