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ELRCOtherNot stated in the judgment

Top Deck Travel and Tours Limited v Tutui & another (Cause E011 of 2021) [2024] KEELRC 214 (KLR)

Employment and Labour Relations Court
9 February 2024
SRStella Rutto
1,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a claim filed over four years late, confirming that employment disputes must be filed within three years.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Stella Rutto, J on 9th February 2024, determines the Respondents' Notice of Preliminary Objection dated 4th May 2021. The Respondents, former employees of the Claimant, contended that the Claim was statute-barred under Section 90 of the Employment Act, 2007, which requires suits arising out of contracts of service to be commenced within three years of the act, neglect or default complained of, and that the objection was a pure point of law as per Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. The Claimant did not file submissions despite an extension of 14 days granted on 22nd November 2023. The court framed a sole issue: whether the suit was time barred. It noted the Claimant's allegations that the Respondents breached their employment contracts, absconded duty, incorporated a competitor company, Green Bay Travel Limited, and misappropriated Kshs 2,967,493.00. Adopting the definition of a cause of action in Letang v Cooper as cited in Attorney General v Andrew Maina Githinji, the court held the cause of action arose on 11th December 2013 when the Respondents allegedly absconded and incorporated the competitor company, so limitation ran until 10th December 2016. The claim, filed on 7th January 2021, was thus time barred. Following Thuranira Karauri v Agnes Ncheche, that limitation goes to jurisdiction, the court found it lacked jurisdiction, sustained the preliminary objection, struck out the claim, and ordered each party to bear its own 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 suit is time barred under Section 90 of the Employment Act

Key legal issues

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Whether the claim was instituted outside the three-year limitation period in Section 90 of the Employment Act

Holding

The cause of action arose on 11th December 2013 when the Respondents allegedly absconded duty and incorporated a competitor company; time ran until 10th December 2016; the claim filed on 7th January 2021 was therefore time barred and the court lacked jurisdiction.

Reasoning

Section 90 requires suits arising from contracts of service to be commenced within three years of the act, neglect or default complained of. Applying the definition of a cause of action from Letang v Cooper as adopted in Attorney General v Andrew Maina Githinji, the cause of action arose when the Respondents allegedly absconded and incorporated the competitor company. The claim, filed in 2021, far exceeded the three-year window. Following Thuranira Karauri v Agnes Ncheche, limitation goes to jurisdiction, so the court struck out the suit.

p. 3

Legal principles established

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  • Limitation under Section 90 of the Employment Act goes to the jurisdiction of the court; a claim founded on a contract of service filed more than three years after the cause of action arose cannot be sustained

Court orders

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  1. 1.The Respondents' Preliminary Objection dated 4th May 2021 is sustained
  2. 2.The Claim filed on 7th January 2021 is struck out for being time barred
  3. 3.Each party shall bear its own costs

The bench

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

SR
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; ruling turns on Section 90 of the Employment Act, 2007

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 light of the provisions of Section 90 of the Employment Act, the time for filing the instant suit started running from 11th December 2013 until 10th December 2016. Thereafter, no action based on the employment contract could be sustained.
p. 3Limitation under Section 90 of the Employment Act
the Respondents’ Preliminary Objection dated 4th May 2021, is sustained, with the consequence that the Claim filed on 7th January 2021, is struck out for being time barred.
p. 3Disposition
Each party shall bear its own costs.
p. 3Costs

Issues in the judgment

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minor

The ruling states the Respondents incorporated the competitor company on 11th December 2023 in one paragraph and 11th December 2013 in another, which is internally inconsistent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Top Deck Travel and Tours Limited v Tutui & another (Cause E011 of 2021) [2024] KEELRC 214 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/214/eng@2024-02-09

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