Betty Osiako v Timsales Limited [2020] KEELRC 1401 (KLR)
The bottom line
#A Kenyan court struck out an unfair termination claim filed three years and three months after dismissal, confirming the three-year employment claim deadline is strictly enforced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Is the suit statutory time barred?
- 2.Should the court enlarge time to file suit?
Key legal issues
#Whether the suit is time barred under section 90 of the Employment Act, 2007
Yes - the cause of action arose on termination on 15th May, 2013 and the claim filed on 31st May, 2016 was three months outside the 3-year limitation period.
Employment terminated on 15th May, 2013. Under section 90, a suit must be filed within 3 years of the cause of action arising. The claimant conceded the statutory lapse by seeking enlargement of time. The claim filed on 31st May, 2016 was outside the period and the section is mandatory in terms.
Whether pending criminal proceedings excuse the delay in filing the claim
No - criminal proceedings are no bar to civil proceedings, and the acquittal does not extend the limitation period; the unexplained gap after acquittal defeats the application.
The Court of Appeal in Regent Management and Andrew Maina Githinji holds that a dismissed employee need not await the outcome of criminal proceedings before suing. The period between acquittal on 22nd October, 2015 and lapse of time on 11th February, 2016 was unaccounted for, and limitation based on contract cannot be extended.
Whether the court has discretion to enlarge time under section 90
No - section 90 denies the court jurisdiction to enlarge time upon lapse of the statutory period, following Beatrice Kahai Adagala.
Following the Court of Appeal in Beatrice Kahai Adagala v Postal Corporation, section 90 is in mandatory terms; claims founded on contract must be filed within 3 years and the limitation period is never extended in contract matters, only in tort under sections 27 and 28 of the Limitation of Actions Act. The court is therefore without jurisdiction to entertain the suit.
Legal principles established
#- Section 90 of the Employment Act, 2007 is couched in mandatory terms and denies the court jurisdiction to enlarge time for filing suit after the lapse of the statutory 3-year period.
- Institution of criminal proceedings is not a bar to civil proceedings on similar facts, and a dismissed employee need not await the outcome of criminal proceedings before challenging dismissal.
Court orders
#- 1.Notice of Motion dated 18th May, 2018 seeking enlargement of time dismissed for lack of jurisdiction
- 2.The claim struck out
- 3.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 limitation invoked)
Relief refused
#Leave to enlarge time to file the Memorandum of Claim out of time and deemed proper filing
Section 90 of the Employment Act is mandatory and denies the court jurisdiction to enlarge time after the statutory period lapses
Costs
No orders on costs - each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the court is without jurisdiction to hear the instant suit; there is no jurisdiction to allow application dated 18 th May, 2018 seeking to enlarge time and the objections by the respondent are with merit. The claim is hereby struck out. No orders on costs.
Section 90 couched in mandatory terms denies the court the jurisdiction to enlarge time for a party to file suit upon the lapse of the statutory period.
It is also settled that the institution of criminal proceedings is not a bar to civil proceedings on similar facts.
The purposes and objectives of a criminal trial are different from disciplinary proceedings within the employment relationship. Different legal principles apply.
Issues in the judgment
#The judgment states the claim was filed '3 months after the lapse of 3 months' in the application grounds, an apparent typographical error for '3 months after the lapse of 3 years'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Betty Osiako v Timsales Limited [2020] KEELRC 1401 (KLR)", Case Analysis (2020). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1401/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.