Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in judgment· [2023] KEELRC 2050 (KLR)

Malusi v Inter Security Services Limited (Cause 590 of 2018) [2023] KEELRC 2050 (KLR)

Employment and Labour Relations Court
31 July 2023
ANABUODHA N.
470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a Kshs.1.6 million unfair dismissal claim filed more than three years late, confirming the three-year deadline is absolute.

What this practically means

#

Executive summary

#
The claimant, a security guard employed by the respondent, pleaded that he was arrested on 16th December 2011 on allegations of theft and charged with stealing contrary to Section 275 of the Penal Code. He was acquitted on 20th August 2015 and, on attempting to report back to work, was allegedly verbally dismissed without cause. He claimed Kshs.1,630,170/= comprising underpayment during the period worked, unpaid salary during suspension, annual leave, salary in lieu of notice and compensation for unfair termination, contending that he was never called upon to defend himself against the allegations. The respondent filed a statement of response and a preliminary objection asserting that the claimant absented himself from duty after being charged, and that the claim was statute barred under Section 90 of the Employment Act. The court held that limitation goes to jurisdiction and may be raised suo motu even in an undefended cause. On the claimant's own pleadings, more than three years elapsed between the alleged verbal dismissal in August 2015 and the filing of the claim on 23rd April 2018. Section 90 was held to be mandatory and incapable of extension. The court struck out the claim as statute barred, with no order as to costs.

Key legal issues

#
01

Whether the claim was barred by Section 90 of the Employment Act

Holding

The claim was statute barred as it was filed more than three years after the alleged dismissal

Reasoning

On the claimant's own pleadings, he was arrested on 16th December 2011 and acquitted on 20th August 2015, after which he alleges he was verbally dismissed. The claim was filed on 23rd April 2018, more than three years later. Section 90 of the Employment Act is mandatory and the period cannot be extended.

p. 2
02

Whether the court could raise limitation suo motu in an undefended cause

Holding

Yes; limitation goes to jurisdiction and the court may decline jurisdiction on its own motion

Reasoning

The court held that because limitation touches jurisdiction, the court cannot proceed once satisfied that a matter is barred by statute, regardless of whether it proceeded as an undefended cause. It may decline jurisdiction on its own motion where the claim is statute barred.

p. 2

Legal principles established

#
  • Limitation goes to jurisdiction and a court may, on its own motion, decline to entertain a claim that is statute barred, even where the cause proceeds undefended
  • The limitation period under Section 90 of the Employment Act is mandatory and cannot be extended once it lapses

Court orders

#
  1. 1.The claim struck out as statute barred
  2. 2.No order as to costs
Jurisdiction invoked
Not expressly invoked; Employment Act, Section 90 (limitation) considered

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Malusi v Inter Security Services Limited (Cause 590 of 2018) [2023] KEELRC 2050 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2050/eng@2023-07-31

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