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ELRCStruck OutNot stated in judgment

Melkor Pola Kalama v Brookside Dairy Limited [2020] KEELRC 1731 (KLR)

Employment and Labour Relations Court
23 January 2020
LNLinnet Ndolo
330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an unfair dismissal claim filed six years late, confirming you have only three years from your dismissal date to sue.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa determines a preliminary objection raised by the Respondent by notice dated 16th July 2018, contending that the Claimant's claim is statute barred under Section 90 of the Employment Act. Although duly served, the Claimant did not respond to the objection. The Respondent's position was that the Claimant, having been dismissed on 29th August 2012, filed his claim on 15th May 2018, far beyond the limitation period. The Claimant's own Statement of Claim, at paragraph 8, pleads dismissal on 29th August 2012. Section 90 of the Employment Act provides that no civil action arising from the Act or a contract of service shall be instituted unless commenced within three years after the act complained of, or within twelve months after cessation in the case of continuing injury. Applying the Court of Appeal's decision in Attorney General & another v Andrew Maina Githinji and another [2016] eKLR, the court held that in termination claims the cause of action crystallises when the termination letter is issued, and time begins to run from that date. The claim should therefore have been filed by 28th August 2015. It was filed well beyond that date, and the court held it had no jurisdiction to entertain it. The court struck out the claim with no order for costs.

Questions the Court framed

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

  1. 1.Whether the Claimant's claim, filed on 15th May 2018 following dismissal on 29th August 2012, is statute barred under Section 90 of the Employment Act
  2. 2.Whether the Court has jurisdiction to entertain a claim filed outside the three-year limitation period

Key legal issues

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01

Whether the claim is statute barred under Section 90 of the Employment Act

Holding

The claim filed on 15th May 2018, more than three years after dismissal on 29th August 2012, is out of time and the Court has no jurisdiction to entertain it.

Reasoning

Section 90 of the Employment Act requires that civil actions arising from the Act or a contract of service be commenced within three years after the act complained of. Relying on the Court of Appeal's decision in Attorney General & another v Andrew Maina Githinji, the cause of action in termination cases crystallises when the termination letter is issued. Since dismissal occurred on 29th August 2012, the claim ought to have been filed by 28th August 2015; it was not, and the limitation bar ousts jurisdiction.

p. 1

Legal principles established

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  • In a claim arising from termination of employment, the cause of action crystallises when the termination letter is issued, and time under Section 90 of the Employment Act begins to run from that date.

Court orders

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  1. 1.The claim is struck out with no order for costs

The bench

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

LN
majority

Wrote the judgment

Jurisdiction invoked
Section 90 of the Employment Act (statutory limitation jurisdiction)

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.

no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years after the act, neglect or default complained
p. 1Section 90 Employment Act limitation period
in a claim arising from termination of employment, the cause of action crystallises when the termination letter is issued. This is when time begins to run.
p. 1When time begins to run in termination claims
The current claim is therefore way out of time and the Court has no jurisdiction to entertain it.
p. 1Effect of limitation on jurisdiction
The claim is therefore struck out with no order for costs.
p. 1Final orders

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, "Melkor Pola Kalama v Brookside Dairy Limited [2020] KEELRC 1731 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1731/eng@2020-01-23

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