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ELRCDismissedNot stated in judgment (application dated 13 January 2025)

Kazungu v Kenya Ports Authority (Miscellaneous Application E002 of 2025) [2025] KEELRC 982 (KLR)

Employment and Labour Relations Court
27 March 2025
MMM. Mbaru
1,895 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa confirmed there is no discretion to extend the three-year deadline for filing employment claims, dismissing a worker's late bid to enforce a Ksh. 850,118 work injury award.

What this practically means

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Executive summary

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The applicant, a former employee of the respondent, sustained a work injury on 28 July 2018 while loading and offloading cargo. DOSH assessed him with 10% permanent incapacity and on 28 November 2018 directed the respondent to pay Ksh. 850,118 within 90 days. No payment was made, and the respondent filed no objection or appeal against the DOSH award. The respondent's insurers instead requested a second medical assessment, which remained pending. The applicant filed an application dated 13 January 2025 seeking leave to apply to enforce the DOSH award out of time, contending that the delay was beyond his control and amounted to a continuing injury under Section 89 of the Employment Act. The respondent opposed, arguing no legal provision allows an extension of time to enforce a DOSH award and that the 3-year limitation under Section 89 had expired on 28 November 2021. The court framed two issues: whether Section 89 permits an extension of time, and whether a WIBA-based work injury claim constitutes a continuing injury under Section 89. Relying on Divecon Ltd v Samani, Maria Machocho v Total Kenya, Mitei v NSSF and Peter Ndaka Mutavi v Pembe Flour Mills, the court held that Section 89 is mandatory and admits no discretion to extend time, and that claims arising under WIBA must be pursued under WIBA's own modalities, which cannot be cured through the Limitation of Actions Act. The application was dismissed with each party bearing its own costs.

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 should grant leave/extension of time to file a claim to enforce the DOSH award out of time under Section 89 of the Employment Act
  2. 2.Whether a work-related injury premised under WIBA constitutes an employment claim or continuing injury to which Section 89 of the Employment Act applies

Key legal issues

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01

Whether Section 89 of the Employment Act permits extension of time to file a claim

Holding

No; the provision is couched in mandatory terms with no discretion to extend the 3-year limitation period

Reasoning

The court relied on Divecon Ltd v Samani and Mitei v NSSF, holding that limitation provisions are mandatory and the court has no discretion to extend time for employment claims founded on contract or the Employment Act. Maria Machocho v Total Kenya confirms no discretion beyond 3 years.

p. 4
02

Whether a WIBA work-injury claim can be characterised as a continuing injury under Section 89

Holding

No; WIBA claims are governed by WIBA modalities and cannot be aided by Section 89 of the Employment Act

Reasoning

The court held that where the cause of action arises under WIBA, the applicant is bound by WIBA provisions; seeking enlargement under Section 89 is unnecessary and would defeat the purpose of WIBA. The pending second medical assessment did not constitute a continuing injury for Section 89 purposes.

p. 4

Legal principles established

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  • Section 89 of the Employment Act does not envisage an extension of time to file claims out of time
  • WIBA claims cannot be brought under Section 89 of the Employment Act for time enlargement; the Limitation of Actions Act cannot cure this

Court orders

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  1. 1.The orders seeking an enlargement of time to file a claim out of time under the application dated 13 January 2025 shall not be issued
  2. 2.The application is dismissed
  3. 3.Each party bears its costs

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Section 89 of the Employment Act (application for extension of time to file claim)

Relief refused

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Leave to apply to enforce the DOSH award out of time

Section 89 of the Employment Act does not envisage an extension of time; WIBA governs work injury claims and no discretion exists to extend time

p. 4

Costs

Each party bears its 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.

Accordingly, the orders seeking an enlargement of time to file a claim out of time under the application dated 13 January 2025 shall not be issued. The application is without merit and is hereby dismissed. Each party bears its costs.
p. 4Final orders - dismissal of application
Section 89 of the Employment Act does not envisage an extension to file claims out of time.
p. 3Mandatory limitation under Section 89
No one shall have the right or power to bring an action after the end of six years from the date on which a cause of action accrued, an action founded on contract.
p. 3Divecon Ltd v Samani on limitation

Issues in the judgment

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minor

Inconsistent dates for the work injury: stated as 28 July 2018 in one paragraph and 28 November 2018 elsewhere

minor

Judgment refers to 'section 98 of the Employment Act' where the context indicates Section 89

minor

Case name appears garbled in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kazungu v Kenya Ports Authority (Miscellaneous Application E002 of 2025) [2025] KEELRC 982 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 13 January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/982/eng@2025-03-27

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