Otimah v Sameer Africa Limited t/a Sameer Africa PLC (Cause E701 of 2024) [2025] KEELRC 1613 (KLR)
The bottom line
#Kenya's Employment Court struck out a nine-year-late gratuity claim, confirming the three-year time limit applies even when claims are framed as constitutional discrimination.
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 suit is subject to statutory limitation by dint of Section 89 (formerly Section 90) of the Employment Act
- 2.Whether the claim, being founded on alleged constitutional discrimination, is exempt from limitation timelines
- 3.Whether the delay of approximately nine years in filing the claim was inordinate and adequately explained
- 4.Whether the ELRC has jurisdiction to entertain constitutional questions
Key legal issues
#Applicability of Section 89 of the Employment Act to a gratuity computation claim
The claim is governed by Section 89 because it is based on a contract of service; gratuity accrues from the contract of service
The court rejected the Claimant's attempt to decouple the claim from the Employment Act. The claim rests on a contract of service executed with the Respondent, and gratuity is a benefit typically provided for in an employment contract, accruing on the basis of that contract. Without the contract there would be no claim, so the three-year limitation under Section 89 applies.
When the cause of action accrued and whether the claim is time-barred
The cause of action arose on 16th July 2015 when the Claimant became aware of the gratuity computation; suit filed on 30th August 2024 is time-barred
Strictly applying Section 89, the Claimant ought to have filed on or before 16th July 2018. The suit was instead filed approximately nine years later, well outside the three-year window, rendering the claim statute-barred notwithstanding its constitutional framing.
Whether constitutional framing exempts the claim from limitation and whether the delay was excusable
No; the nine-year delay was inordinate and the explanation of lack of funds was implausible and rejected
While fundamental-rights claims carry no specific time bar, they are not timeless. The Court of Appeal in Mitei treated seven years as inordinate; nine years is a fortiori inordinate. The Claimant's pleaded reason - lack of funds - was rejected because he never sought fee exemption under Order 33 of the Civil Procedure Rules or Rule 81 of the ELRC Rules, 2024.
ELRC jurisdiction over constitutional questions
The Respondent's objection on jurisdiction was faulty; the ELRC can enforce labour rights and interpret the Constitution within its exclusive domain
Relying on the Court of Appeal's decision in Daniel N Mugendi v Kenyatta University, which adopted Gcaba v Minister of Safety and Security, the court confirmed that the ELRC, being of the same status as the High Court, may enforce Article 41 rights and incidental fundamental rights and interpret the Constitution in matters within its exclusive domain.
Legal principles established
#- A claim arising out of a contract of service must be instituted within three years from the date the cause of action arose under Section 89 of the Employment Act
- Although there is no limitation period for enforcing fundamental rights, the court may decline relief where the claim is lodged after inordinate and unexplained delay
- The ELRC, as a specialist court of the same status as the High Court, has jurisdiction to enforce Article 41 labour rights and incidental fundamental rights including interpretation of the Constitution within its exclusive domain
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 30th December 2024 is sustained
- 2.The Claim dated 29th July 2024 is struck out for being time-barred
- 3.Each party shall bear its own costs
- 4.The finding shall apply to all the other 30 matters in the series listed in the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(3) of the Constitution and the Employment and Labour Relations Court Act, matter tried as test suit under Rule 62 of the ELRC (Procedure) Rules 2024
Relief refused
#Declaratory orders and payment of Kshs 339,572 without discrimination, plus compensation for constitutional violation
Claim was time-barred under Section 89 of the Employment Act and the nine-year delay was inordinate with no valid explanation
Costs
Each party shall bear its own 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.
In the final analysis, the Respondent’s Notice of Preliminary Objection dated 30th December 2024 is sustained, with the consequence that the Claim dated 29th July 2024 is struck out for being time-barred.
Each party shall bear its own costs.
As this matter was being tried as a test suit, the finding herein shall apply to all the other matters in the series
this Court finds the period of nine (9) years to be inordinate, more so in view of the relevant time frame for bringing actions founded on a contract of service
Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under ... the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim.
Issues in the judgment
#The Preliminary Objection refers to a 'Motion' and 'Application' although the matter before the court is a Notice of Preliminary Objection to a Statement of Claim, not an application
The Notice of Preliminary Objection misdescribes the Claimant as 'Respondent/Applicant' and refers to 'the Applicant herein is a vexatious and frivolous litigant'
The judgment internally states the gratuity was frozen effective 1st June 2015 in the pleadings recital but effective 1st July 2015 in the analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otimah v Sameer Africa Limited t/a Sameer Africa PLC (Cause E701 of 2024) [2025] KEELRC 1613 (KLR)", Case Analysis (2025). ELRCC No. E701 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1613/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.