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ELRCDismissedNot stated in judgment (application dated 4th March, 2021)

Peter Katithi Kithome v Laboratory & Allied Limited [2021] KEELRC 1478 (KLR)

Employment and Labour Relations Court
31 May 2021
MMM. Mbaru
1,311 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed it cannot extend the strict three-year deadline for filing employment claims, even where the worker spent years in union conciliation.

What this practically means

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Executive summary

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The applicant, formerly employed by Laboratory & Allied Limited as a general worker under a fixed term contract dated 5th January, 2017, sought leave to institute proceedings out of time following his verbal termination on 11th January, 2017. He relied on section 90 of the Employment Act, Articles 41(1) and 165(b) of the Constitution, Order 51 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. He explained the delay by his complaint to the Kenya Chemical Workers Union, which referred the dispute to the Minister for conciliation; a Certificate of Unresolved Dispute was issued on 22nd June, 2020, by which time the limitation period had lapsed. He asserted the delay was due to circumstances beyond his control and that irreparable loss would otherwise result. The court framed a single issue: whether leave to file suit out of time should be granted. It held that section 90 of the Employment Act, 2007 is couched in mandatory terms, reducing the contractual limitation period to three years, and that the court has neither statutory jurisdiction nor discretion to extend time in contract of service claims, following Divecon v Samani and Beatrice Kahai Adagala. It further held that the conciliation process did not stop time running, relying on G4S Security Services and Rift Valley Railways. The application dated 4th March, 2021 was dismissed with no order as to costs. Judgment was delivered in open court at Nairobi on 31st May, 2021 by M. Mbaru, Judge.

Questions the Court framed

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

  1. 1.Whether leave to file suit out of time should be granted

Key legal issues

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01

Whether the court has jurisdiction to grant leave to file suit out of time under section 90 of the Employment Act, 2007

Holding

The court has neither statutory jurisdiction nor discretion to extend time in causes of action based on breach of contract of service; section 90 is mandatory.

Reasoning

Section 90 of the Employment Act, 2007 amended the general six-year contractual limitation period to three years in employment claims. Before that amendment, no extension was permissible in contract claims per Divecon v Samani. The Court of Appeal in Adagala confirmed that the limitation period is never extended in contract-based employment claims, and only in tort under sections 27 and 28 of the Limitation of Actions Act. The court therefore lacks power to grant leave.

p. 2
02

Whether the union-driven conciliation process stopped time from running

Holding

Conciliation does not suspend the limitation period under section 90 of the Employment Act.

Reasoning

The applicant reported the dispute to his union, which referred it to the Minister, culminating in a Certificate of Unresolved Dispute on 22nd June, 2020. Relying on G4S Security Services and Rift Valley Railways, the court held that time does not stop running on commencement of conciliation or other ADR mechanisms, and out-of-court negotiations do not arrest limitation.

p. 2

Legal principles established

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  • The three-year limitation period in section 90 of the Employment Act, 2007 is mandatory and the ELRC has no jurisdiction or discretion to extend time in claims based on contract of service.
  • Conciliation or other out-of-court dispute resolution does not stop time running under section 90 of the Employment Act.

Court orders

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  1. 1.Application dated 4th March, 2021 dismissed with no order as to costs

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Article 41(1) and 165(b) of the Constitution; section 90 of the Employment Act, 2007 read with section 15 of the Employment and Labour Relations Court Act, 2011

Relief refused

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Leave to institute proceedings out of time against Laboratory & Allied Limited following termination on 11th January, 2017

The court lacks statutory jurisdiction or discretion to extend time under section 90 of the Employment Act, 2007; conciliation did not stop time from running.

p. 2

Costs

No order as to costs

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.

In the circumstances I do decline to accept the invitation by the applicant to grant leave to file suit out of time and dismiss the application dated 4th March, 2021 with no order as to costs
p. 2Disposition - dismissal of the application
Time does not stop running on the commencement of reconciliation or other alternative dispute resolution mechanisms provided for under the Constitution or any other law.
p. 2Effect of conciliation on limitation
this Court neither has the statutory jurisdiction nor discretion to grant leave or extend time in causes of action based on breach of contract of service or actions arising out of the Employment Act, 2007.
p. 2Jurisdiction on extension of time

Issues in the judgment

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minor

Judgment extract does not state the case/file number or the applicant's name

minor

Typographical error in the disposition paragraph ('out of tie' instead of 'out of time')

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, "Peter Katithi Kithome v Laboratory & Allied Limited [2021] KEELRC 1478 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 4th March, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1478/eng@2021-05-31

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