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ELRCAllowedOriginating Motion dated 8 January 2024

Ogutu v Kenya Airports Authority (Miscellaneous Application E001 of 2024) [2024] KEELRC 558 (KLR)

Employment and Labour Relations Court
13 March 2024
1,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a former airports employee to sue for unfair dismissal years late because mental illness stopped him acting sooner.

What this practically means

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Executive summary

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The applicant, an engineer employed by the Kenya Airports Authority on 2 January 2012, was diagnosed with a mental illness in April 2014. He was convicted of manslaughter on 29 November 2017 and sentenced to two years' imprisonment, and on 16 January 2018 the Respondent summarily dismissed him on account of the conviction. Through an Originating Motion dated 8 January 2024, he sought leave to institute an action against the Respondent out of time, arguing that his mental disability and inability to afford medication after his 2019 release impaired his cognitive ability to make decisions. The Respondent filed Grounds of Opposition asserting the Court lacked jurisdiction to grant leave because section 90 of the Employment Act left no discretion to admit stale actions, relying on Divecon v Samani. The applicant relied on section 22 of the Limitation of Actions Act and AAA v Teachers Service Commission. The Court found the Respondent had not disputed the medical disability, that the cause of action accrued while the applicant was under a disability, and that section 22 applies to causes founded on tort or contract alike without requiring prior leave. It distinguished Divecon v Samani as not having addressed disability under section 22. The Court held it had discretion to extend time on satisfactory proof of disability, allowed the application, granted the applicant leave to commence an action alleging unfair termination and/or breach of contract within 21 days, and ordered each party to bear own costs. Judgment delivered virtually from Kisumu on 13 March 2024 by Radido Stephen, Judge.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction to grant leave to institute an action out of time against the Respondent under section 90 of the Employment Act read with section 22 of the Limitation of Actions Act
  2. 2.Whether the applicant's medical disability (mental illness) justifies extension of time to commence an action alleging unfair termination and/or breach of contract

Key legal issues

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01

Applicability of section 22 of the Limitation of Actions Act to contractual causes of action

Holding

Section 22 applies without distinction between tort and contract and does not require prior leave.

Reasoning

The Court read section 22 of the Limitation of Actions Act and found it contemplates filing an action after limitation has expired in cases of disability whether the cause is founded in tort or contract, and that the section does not envisage a prior grant of leave. The Court of Appeal decision in Divecon v Samani did not address extension of time where disability under section 22 was raised and proved, so it did not bar the relief.

p. 2
02

Whether the applicant proved disability

Holding

The applicant's mental illness affected his cognitive competence and the Respondent did not controvert that evidence.

Reasoning

The applicant was diagnosed with a mental illness in April 2014, before the cause of action accrued on his summary dismissal in January 2018, and contended that after release from prison in 2019 he could not afford medication, impairing his decision-making. The Respondent did not dispute the medical disability or the continuing medical management, so the Court accepted the disability as established.

p. 3

Legal principles established

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  • Where a cause of action accrued while a person was under a medical disability proved to the court's satisfaction, the Court has discretion to extend time to bring a contractual action notwithstanding expiry of the limitation period.

Court orders

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  1. 1.The applicant is granted leave, if necessary, to commence an action against the Respondent alleging unfair termination of contract and/or breach of contract within 21 days
  2. 2.Each party to bear own costs of the Originating Motion

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 22 of the Limitation of Actions Act

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.

the Court has the discretion to extend time to initiate an action alleging breach of contract if there is satisfactory proof that due to a disability, the applicant could not bring an action within time.
p. 3Discretion to extend time on proof of disability
The applicant is granted leave, if necessary, to commence an action against the Respondent alleging unfair termination of contract and/or breach of contract within 21 days.
p. 3Final orders - leave granted
Each party to bear own costs of the Originating Motion.
p. 3Costs
Section 22 of the Limitation of Actions Act contemplates the filing of an action where the limitation period has expired in circumstances of disability without distinction whether the cause of action is founded upon tort or contract.
p. 2Scope of section 22 Limitation of Actions Act

Issues in the judgment

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minor

Order numbering is incomplete - the judgment states 'the Court will allow the application and order:' followed by 'i.' but only one order is listed; the text also appears to omit a second order.

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, "Ogutu v Kenya Airports Authority (Miscellaneous Application E001 of 2024) [2024] KEELRC 558 (KLR)", Case Analysis (2024). Originating Motion dated 8 January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/558/eng@2024-03-13

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