Innocent Gateria Wambugu v Safaricom Kenya Limited [2021] KEELRC 1655 (KLR)
The bottom line
#A Kenyan court struck out an unfair dismissal claim filed nearly six years late, confirming employment contract claims must be filed within three years.
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 suit, filed on 24th December 2019 over a termination on 31st January 2014, is time barred under Section 90 of the Employment Act, 2007
- 2.Whether the court lacks jurisdiction to entertain a time-barred employment contract claim
- 3.Whether enlargement of time was available to the claimant
Key legal issues
#Limitation under Section 90 of the Employment Act, 2007
The suit was filed more than five years after termination, far outside the three-year limitation period, and was therefore time barred
Section 90 requires that civil actions arising out of the Employment Act or a contract of service be commenced within three years of the act complained of. The cause of action arose on 31st January 2014 when employment was terminated; three years expired on 31st January 2018. The suit was filed on 24th December 2019, over five years after termination. The claimant did not seek leave for enlargement of time, which in any event is unavailable for contract-based claims.
Jurisdiction over time-barred suits
Lacking jurisdiction over a time-barred claim, the court struck the suit out
Limitation extinguishes the court's jurisdiction to entertain the claim. The court, bound by the Court of Appeal decision in Attorney General and Another v Andrew Maina Githinji and Another, found the claim time barred by a long margin and consequently struck out the suit for want of jurisdiction rather than dismissing it on the merits.
Enlargement of time
No enlargement of time was sought and none is available for contract-based claims
The claimant never sought leave for enlargement of time within which to file the suit, so the question did not arise. The court reiterated the settled position that extension of time is not granted for claims founded on contract, as distinct from statutory claims.
Legal principles established
#- Claims based on employment contract must be filed within the three-year limitation period under Section 90 of the Employment Act, 2007, and enlargement of time shall not be granted in claims based on contract
- A court lacks jurisdiction to entertain a suit filed outside the statutory limitation period
Court orders
#- 1.The suit is struck out for want of jurisdiction to hear and determine it
- 2.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 90 of the Employment Act, 2007 (limitation) — original jurisdiction of the Employment and Labour Relations Court
Relief refused
#All reliefs sought by the claimant (payment in lieu of notice, service pay, one month unpaid salary, sales incentives and compensation for unlawful dismissal)
The suit was time barred under Section 90 of the Employment Act and the court lacked jurisdiction to entertain it
Costs
Each party to bear their own costs of the suit, the same having been determined at the outset as guided by the Lilian 'S' Case.
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 suit is time barred by a long margin of time and this Court lacks jurisdiction to entertain the same. The suit is therefore struck out for want of jurisdiction to hear and determine it.
We deem this an appropriate case for each party to bear their own costs of the suit the same having been determined at the outset as guided by the Lilian ‘S’ Case.
Therefore, a suit based “on employment contract” must be filed within three (3) years from the date the cause of action arose.
Issues in the judgment
#The judgment dates the filing of the suit inconsistently, stating it was filed on 24th December 2019 at one point and 27th December 2019 at another
The Attorney General v Andrew Maina Githinji extract contains an internal date inconsistency, describing cause of action dates as 2nd October, 2010 and 2nd February, 2010 in the same passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Innocent Gateria Wambugu v Safaricom Kenya Limited [2021] KEELRC 1655 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1655/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.