Njeri (Suing as the Legal Representative of the Estate of Anthony Nguri Karori) v East African Portland Cement Company PLC (Miscellaneous Application E841 of 2022) [2024] KEELRC 1744 (KLR)
The bottom line
#The ELRC struck out a widow's claim for her late husband's dues because it was filed more than three years after his death, which is when the countdown started.
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 Claimant's claim is time barred under Section 90 of the Employment Act
- 2.Whether time began to run on the death of the employee (cessation of the contract) or upon the Respondent's admission of liability
- 3.Whether this Court has jurisdiction to entertain a claim filed out of the three-year limitation period
Key legal issues
#When does limitation begin to run under Section 90 of the Employment Act where the employment ends by death of the employee?
Time runs from the cessation of the contract, i.e. the date of the employee's death, not from the employer's subsequent admission of liability
Section 90 requires claims arising out of employment to be filed within three years of the act or default complained of. The court held that the cause of action accrues on cessation of the contract. Since the employer-employee relationship ended on 29th June 2019 upon the deceased's death, the three-year period expired on 29th June 2022, and the claim filed in November 2022 was out of time. The Respondent's letters admitting owing dues did not create a fresh cause of action.
Whether the Court can extend time or excuse non-compliance with Section 90
No - Section 90 is mandatory and the Court has no jurisdiction to extend time; the suit filed out of time must be struck out
Relying on Michira & 41 others v Aegis Kenya Ltd, the court held that Section 90 is framed in mandatory terms and the Court is denied jurisdiction to extend time. The Claimant offered no explanation for the delay or for failing to obtain a limited grant to file in time. The court expressed sympathy but held the statute must take its course, only urging the Respondent to consider settling the dues voluntarily.
Legal principles established
#- Under Section 90 of the Employment Act, the cause of action accrues upon cessation of the employment contract, not upon the employer's admission of liability for dues
- Section 90 of the Employment Act is mandatory and this Court has no jurisdiction to extend the three-year limitation period
Court orders
#- 1.The Notice of Preliminary Objection by the Respondent is sustained
- 2.The suit is struck out as incompetent
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims
Relief refused
#Claimant's suit for terminal dues of the deceased employee
The claim was filed out of time; Section 90 of the Employment Act is mandatory and the Court cannot extend the three-year limitation period
Claimant's prayer for costs against the Respondent
The Court struck out the suit with no orders as to costs
Costs
No orders as to costs - 'the suit is hereby struck out as incompetent but with no orders as to costs.'
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.
A proper reading of the above provision of Section 90 of the Employment Act leads to the conclusion that the cause of action starts running after cessation of the contract.
This Court is denied jurisdiction to extend time to file suits not lodged with the court within 3 years from the date the cause of action arose.
The objection by the Respondent is however as per the law, sustained and the suit is hereby struck out as incompetent but with no orders as to costs.
Issues in the judgment
#The judgment refers inconsistently to the deceased employee's name - 'Antony Ngugi Karuri' and 'Antony Ngugi Karori'
The judgment refers to a 'last admission on 28th July, 2021' while earlier referring to the admission letter as dated 28th June 2021
The case caption, cause number and parties' names are not reproduced in the provided judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeri (Suing as the Legal Representative of the Estate of Anthony Nguri Karori) v East African Portland Cement Company PLC (Miscellaneous Application E841 of 2022) [2024] KEELRC 1744 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1744/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.