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ELRCPartially AllowedNot stated in judgment (Memorandum of Appeal filed 12 February 2024)

County Government of Nyamira v Aruasa (Appeal E002 of 2024) [2024] KEELRC 1594 (KLR)

Employment and Labour Relations Court
26 June 2024
RSRadido Stephen
1,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that courts cannot extend the three-year deadline for filing employment contract claims — late claims are barred, no exceptions.

What this practically means

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Executive summary

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Grace Nyakerario Aruasa, a former employee of the Town Council of Nyamira who resigned due to ill health in 2004, sought leave in the Senior Resident Magistrates Court to file suit out of time for salary arrears of Kshs 337,452/- against the County Government of Nyamira, the Council's successor under the Constitution, 2010. On 3 January 2024 the magistrate granted leave ex parte and deemed the draft plaint duly filed. The County Government appealed to the Employment and Labour Relations Court, contending that the magistrate's decision was per incuriam because the limitation provisions governing employment (contractual) claims are mandatory and courts have no jurisdiction to extend statutory timelines, and that the ex parte orders disregarded its preliminary objection contrary to natural justice. Radido Stephen, J, recalling the duty of a first appellate court to re-evaluate the evidence, held that the cause of action accrued around 2004 and was governed by section 4(1) of the Limitation of Actions Act and, after 2 June 2008, by the mandatory three-year period in section 90 of the Employment Act. Relying on Divecon v Samani and Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held that no court may extend time for filing contractual actions; extension under sections 27 and 28 of the Limitation of Actions Act applies only to tort. The magistrate therefore acted outside jurisdiction. The appeal was allowed, the leave order was vacated and set aside and substituted with an order dismissing the Motion dated 20 December 2023. In light of the Respondent's undisputed ill health, each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.The role of a first appellate court on appeal
  2. 2.Whether the trial court could grant leave to file a suit founded on contract (employment claim) out of time

Key legal issues

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01

Whether the Senior Resident Magistrate had jurisdiction to grant leave to file an employment (contractual) claim out of time

Holding

The magistrate acted outside jurisdiction; leave cannot extend the mandatory limitation period in contract claims

Reasoning

The cause of action accrued around 2004, governed by section 4(1) of the Limitation of Actions Act (3 years for contract). Section 90 of the Employment Act, 2007 also prescribes a 3-year period in mandatory terms. The Court of Appeal in Divecon v Samani and Beatrice Kahai Adagala established that no court may entertain a contractual action filed after the limitation period or extend such time; extension applies only to tort claims under sections 27 and 28 of the Limitation of Actions Act. The magistrate therefore acted outside jurisdiction.

p. 3
02

Whether section 27 of the Limitation of Actions Act could rescue the Respondent's claim

Holding

No; section 27 applies only to actions in negligence, breach of duty or nuisance (tort), not contract

Reasoning

The court held that even the extension provisions of the Limitation of Actions Act could not assist the Respondent because they apply to tortious actions such as negligence, breach of duty or nuisance, whereas her claim was founded on contract for salary arrears.

p. 3

Legal principles established

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  • The limitation period for claims founded on contract, including employment claims under section 90 of the Employment Act, is mandatory and cannot be extended by the court
  • The limitation period can only be extended in claims founded on tort under sections 27 and 28 of the Limitation of Actions Act, not in contract
  • On a first appeal the court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The Appeal is allowed
  2. 2.The order granting leave to file suit out of time is vacated and set aside
  3. 3.Substituted therewith an order dismissing the Motion dated 20 December 2023
  4. 4.Each party to bear their own costs of the Appeal

The bench

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

RS
majority

Wrote the judgment

On appeal from
Senior Resident Magistrates Court
Not stated
Jurisdiction invoked
First appeal from the Senior Resident Magistrates Court (statutory appeal; provision not stated in judgment)

Relief refused

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Respondent's leave to file suit out of time (upheld on appeal in her favour at first instance)

Courts have no jurisdiction to extend statutory limitation timelines for contract-based claims; section 90 of the Employment Act is mandatory and section 27 of the Limitation of Actions Act applies only to tort

p. 3

Costs

Each party to bear their own costs of the Appeal

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 above, the Appeal is allowed, the order granting leave is vacated and set aside and substituted with an order dismissing the Motion dated 20 December 2023.
p. 3Disposition - appeal allowed, leave order set aside
Considering the undisputed ill health of the Respondent, the Court orders each party to bear own costs of the Appeal.
p. 3Costs - each party to bear own costs
The binding case law cited above leave no doubt that the Senior Resident Magistrate acted outside jurisdiction in granting leave to sue after the lapse of prescribed limitation time.
p. 3Jurisdiction - no power to extend limitation in contract claims
No one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract.
p. 3Limitation of contractual actions (Divecon v Samani, adopted)

Issues in the judgment

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minor

The Memorandum of Appeal refers to section 89 of the Employment Act, which the judgment itself marks as erroneous; the operative provision is section 90

minor

Internal date inconsistency: the appeal challenges orders said to be of 03.01.2023 in the grounds but 3 January 2024 in the narrative

minor

Opening of the judgment is truncated - relief (a) in the Motion is left as '…'

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, "County Government of Nyamira v Aruasa (Appeal E002 of 2024) [2024] KEELRC 1594 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Appeal filed 12 February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1594/eng@2024-06-26

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