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ELRCDismissedNot stated in judgment

Kieha v Konifaf Company Limited (Miscellaneous Application 270 of 2023) [2024] KEELRC 2743 (KLR)

Employment and Labour Relations Court
7 November 2024
LNLINNET NDOLO
355 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it cannot extend the three-year deadline for filing employment claims, so late suits are barred.

What this practically means

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Executive summary

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The Applicant, who states he worked for the Respondent between 2001 and 2012, sought leave by application dated 27th September 2023 to file suit against the Respondent out of time. He was arrested on 5th September 2012, charged with stealing by servant, reported to work on 8th September 2012 only to find he had been replaced, and was acquitted on 30th January 2014. By his own admission his claim was statute barred. The governing provision is Section 90 of the Employment Act, which requires civil actions arising out of the Act or a contract of service to be commenced within three years of the act, neglect or default complained of, or within twelve months of cessation of continuing injury. The Court held that the question whether it can extend time in employment-related claims has been decisively resolved by both the ELRC and the Court of Appeal, which in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR affirmed that Section 90 leaves no room for discretion to extend time in employment claims. In light of that jurisprudence, the Court found nothing more to say, dismissed the application dated 27th September 2023 as without merit, and made no order for costs. The judgment was delivered virtually at Nairobi on 7th November 2024 by Linnet Ndolo, Judge. The Respondent did not appear; Mr. Seda appeared for the Applicant.

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 can grant leave to file suit out of time in an employment claim governed by Section 90 of the Employment Act
  2. 2.Whether there has been inordinate delay in bringing the application

Key legal issues

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01

Whether the Court has discretion to extend time for filing employment claims under Section 90 of the Employment Act

Holding

No; the Court lacks discretion to extend time in employment claims under Section 90 of the Employment Act

Reasoning

The Applicant admitted his claim was statute barred. Section 90 requires civil actions arising out of the Employment Act or a contract of service to be commenced within three years. The Court of Appeal in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR authoritatively confirmed that the provision leaves no discretion to extend time, and this Court is bound by that jurisprudence. The application therefore had no merit and was dismissed.

p. 2

Legal principles established

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  • Section 90 of the Employment Act leaves no room for discretion to extend time in employment claims

Court orders

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  1. 1.The application dated 27th September 2023 is dismissed with no order for costs

The bench

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

LN
majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; application under the Court's procedure for leave to institute suit out of time

Relief refused

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Leave to file suit against the Respondent out of time

Section 90 of the Employment Act admits no discretion to extend time; jurisprudence of the Court of Appeal is decisive

p. 2

Costs

No order for costs (application dismissed with no order for costs)

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 application dated 27th September 2023 is without merit and is dismissed with no order for costs.
p. 2Final orders - dismissal of the application
the Court of Appeal afirmed that Section 90 of the Employment Act does not leave any room for discretion to extend time in employment claims
p. 2No discretion to extend time under Section 90 of the Employment Act
no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained
p. 1Limitation period under Section 90 of the Employment Act

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, "Kieha v Konifaf Company Limited (Miscellaneous Application 270 of 2023) [2024] KEELRC 2743 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2743/eng@2024-11-07

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