Wachiuri v Agricultural Finance Corporation (Cause E690 of 2023) [2024] KEELRC 2361 (KLR)
The bottom line
#A Kenyan court struck out an employment claim filed too late, confirming that settlement negotiations do not pause the three-year filing deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether negotiations for out-of-court settlement toll the limitation period
No; time continues to run despite negotiations
Relying on Attorney General & another v Andrew Maina Githinji, the court held that time does not stop running merely because parties are in negotiations. The cause of action arises when the act, neglect or default occurs, not when settlement talks fail. The Claimant's cause of action therefore arose before the three-year period lapsed, and the claim filed in 2023 was out of time.
Whether the Court has discretion to extend the limitation period under Section 90 of the Employment Act
No; Section 90 is mandatory and only admits extension in tort claims under Sections 27 and 28 of the Limitation of Actions Act
Following Beatrice Kahai Adagala v Postal Corporation of Kenya and Divecon Limited v Samani, the court held that Section 90 is in mandatory terms. A claim based on a contract of employment must be filed within three years. Extension is only possible for claims founded on tort satisfying Sections 27 and 28 of the Limitation of Actions Act, which did not apply here.
Legal principles established
#- Engagement in settlement negotiations does not stop the limitation period from running
- Section 90 of the Employment Act is in mandatory terms; a contract of service claim must be filed within three years and the period cannot be extended
Court orders
#- 1.The Claimant's application for extension of time is declined
- 2.The Respondent's Preliminary Objection is upheld
- 3.The claim is struck out
- 4.Each party will bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; limitation governed by Section 90 of the Employment Act as read with Section 4(1) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachiuri v Agricultural Finance Corporation (Cause E690 of 2023) [2024] KEELRC 2361 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2361/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.