Enock Angoya Ombeva v Kenya Medical Training College [2021] KEELRC 1477 (KLR)
The bottom line
#A Kenyan court dismissed an employee's second attempt to sue over old dismissal, confirming the 3-year filing deadline cannot be extended.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant Cause is res judicata in light of the dismissal of ELRC Cause No.1432 of 2018 for being time barred
- 2.Whether the court is functus officio and lacks jurisdiction to hear the application for extension of time
- 3.Whether the instant suit is an abuse of the court process
Key legal issues
#Res judicata
The Cause is res judicata as the same parties and cause of action were decisively dealt with in ELRC Cause No.1432 of 2018, dismissed on 15th October, 2020 for being time barred
The prior suit was dismissed, not struck out, on the application of section 90 of the Employment Act. Dismissal on a pure point of law addressed the matter with finality. A party dissatisfied with that ruling had recourse other than filing a fresh suit; the court stands functus officio and cannot revisit the same matter between the same parties on the same cause of action.
Jurisdiction to extend time
The court lacks jurisdiction to extend or enlarge the limitation period in a contract of employment claim
Relying on Denis Kisang Ripko v Kenya Commercial Bank and Beatrice Kahai Adagala v Postal Corporation of Kenya, section 90 of the Employment Act is in mandatory terms; a claim based on a contract of employment must be filed within 3 years and the limitation period is never extended in matters based on contract.
Abuse of court process
Filing the instant Cause before obtaining leave, after a prior suit on the same cause was dismissed, is an abuse of process
The claimant was aware his earlier suit was dismissed for being time barred. To initiate a fresh Cause even before obtaining leave is to engage in hide and seek with the court and re-litigate a matter already addressed with finality. Such abuse of process should not be encouraged.
Preliminary objection as a pure point of law
The objections raised a pure point of law properly determined without ascertainment of facts
Applying Mukisa Biscuit Manufacturers Ltd v Westend Distributers Ltd, a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion is sought. Here the objections rested on the prior dismissal, a matter of law.
Legal principles established
#- A suit dismissed for being time barred under section 90 of the Employment Act is disposed of with finality and cannot be revived in another form; filing a fresh Cause instead of a miscellaneous application is premature and res judicata
- An application for extension of time should be brought by miscellaneous application, not by filing a fresh Cause
- The limitation period in claims based on contract of employment cannot be extended by the court
Court orders
#- 1.The Cause is dismissed
- 2.The claimant shall meet the respondent's costs assessed at Ksh.50,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the ELRC under the Employment Act and Civil Procedure Act; objections based on section 7 of the Civil Procedure Act and section 90 of the Employment Act, 2007
Relief refused
#Leave to file suit out of time
The court is denied jurisdiction to extend or enlarge time in a claim based on contract of employment, section 90 of the Employment Act being in mandatory terms; the Cause itself is res judicata
Costs
The claimant shall meet the respondent's costs assessed at Ksh.50,000.
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 Cause is hereby dismissed. the claimant shall meet the respondent’s costs assessed at ksh.50, 000.
upon the court addressing the application of section 90 of the Employment Act, 2007 and proceeded to dismiss the suit for being time barred such addressed the same with finality and cannot be revived in any other form.
Where the claimant is seeking extension of time to file suit out of time, a fresh Cause is ill-advised.
This court cannot extend the limitation period in a claim based on contract as the court is not seized of jurisdiction to do so.
Issues in the judgment
#Internal inconsistency in the date of termination of employment - submissions state 2nd October, 2014 while the grounds of the motion state 21st July, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enock Angoya Ombeva v Kenya Medical Training College [2021] KEELRC 1477 (KLR)", Case Analysis (2021). Cause No.E6470 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1477/eng@2021-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.