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ELRCStruck OutNot stated in the judgment extract· [2019] KEELRC 767 (KLR)

Isaiah Simiyu Mulongo v Nation Media Group [2019] KEELRC 767 (KLR)

Employment and Labour Relations Court
26 September 2019
MNM. N. Nduma
534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employment claims must be filed within three years of the event complained of, or the court will strike the case out entirely.

What this practically means

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Executive summary

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The respondent raised a primary objection that the claimant's suit, seeking notice pay, leave allowance, gratuity for a five-year period of service and medical allowance totalling Kshs 142,000, was statute-barred and that the court lacked jurisdiction. The claimant had worked for the respondent from 2004 until termination of services in 2009 and filed the statement of claim on 20th April 2018, more than eight years after the cause of action arose. The court applied Section 4(1) of the Limitation of Actions Act (Cap 22) and, more specifically, Section 90 of the Employment Act 2007, which requires that suits arising out of the Act or a contract of service be commenced within three years of the act, neglect or default complained of. The court held that the 2007 Act was operational at filing and the provision applied. It further held itself bound by the Court of Appeal decision in Attorney General & another v Andrew Maina Githinji (Nyeri Civil Appeal No. 21 of 2015) where Waki, Nambuye and Kiage JJA held that no suit based on contract may be filed upon expiry of the three-year limitation period, a case involving a suit filed after a criminal trial, facts analogous to the present matter. Noting that the claimant neither sought nor justified an extension of time, the court found the limitation period expired at the end of 2013 and that the suit was filed eight years late. Lacking jurisdiction, the court struck out the suit with no orders as to costs.

Key legal issues

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01

Whether the suit filed over eight years after termination is statute-barred

Holding

Yes; Section 90 of the Employment Act 2007 and Section 4(1) of the Limitation of Actions Act bar suits founded on contract of service not brought within three years of the act complained of

Reasoning

The claimant's services were terminated in 2009 and the suit was filed on 20th April 2018, more than eight years later. Section 90 of the Employment Act 2007, applicable as the suit was filed while the 2007 Act was operational, mandates commencement within three years. No extension of time was sought and no justification was advanced. The court, bound by the Court of Appeal decision in Attorney General & another v Andrew Maina Githinji, found the claim time barred.

p. 1
02

Whether the court lacks jurisdiction over a time-barred suit

Holding

Yes; limitation goes to jurisdiction, so the suit was struck out rather than dismissed

Reasoning

The respondent raised a primary objection that the suit was statute-barred and that the court lacked jurisdiction. The court agreed that since the claim was filed outside the limitation period and without any extension, the court was deprived of jurisdiction to entertain it. Consequently the suit was struck out with no orders as to costs.

p. 1

Legal principles established

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  • No civil action or proceedings based on or arising out of the Employment Act or a contract of service shall lie unless commenced within three years of the act, neglect or default complained of, or within twelve months of cessation in the case of continuing injury or damage

Court orders

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  1. 1.The suit is struck out for want of jurisdiction, being statute-barred
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Employment Act 2007Section 90

Cases cited (1)

  • Attorney General & another –vs- Andrew Maina Githinji & another
    (2010) eKLR, Nyeri Civil Appeal No. 21 of 2015
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court considered in light of Section 4(1) of the Limitation of Actions Act (Cap 22) and Section 90 of the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaiah Simiyu Mulongo v Nation Media Group [2019] KEELRC 767 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/767/eng@2019-09-26

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