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ELRCDismissedEx Parte Application dated 27th January 2025

Abere v Wakenya Pamoja Sacco Society Ltd (Miscellaneous Case E008 of 2025) [2025] KEELRC 1773 (KLR)

Employment and Labour Relations Court
18 June 2025
569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court confirmed it cannot extend the strict three-year deadline for filing employment contract claims, no matter how sympathetic the case.

What this practically means

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Executive summary

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The Applicant moved the Court (by ex parte application dated 27th January 2025, initially filed at the High Court at Kisii and transferred to this Court) seeking leave to file a suit out of time against her former employer. She averred she was employed in July 2010 as a teller and terminated in November 2011 while expectant, learning of the termination from colleagues, which allegedly triggered premature labour pains and later stress-related illness. The sole question was whether the Court could grant leave under section 90 of the Employment Act, which bars civil actions arising out of the Act or a contract of service unless commenced within three years of the act complained of. Applying Beatrice Kahai Adagala v Postal Corporation of Kenya (which itself relied on Divecon Limited v Samani and Josephat Ndirangu v Henkel Chemicals), the Court held that section 90 is in mandatory terms, that limitation is never extended in contract-based claims, and that extension is only available in tort claims satisfying sections 27 and 28 of the Limitation of Actions Act. Despite sympathy for the Applicant, the Court held its hands were tied by statute with 'no wriggle room'; the claim, filed more than a decade late with limitation setting in around March 2015, 'has no life'. The motion was dismissed with no order as to costs. Judgment delivered at Kisii on 18th June 2025 by Nzioki wa Makau, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant should be granted leave to file a suit out of time against the Respondent under section 90 of the Employment Act

Key legal issues

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01

Whether the Court can extend time to file an employment claim beyond the three-year period in section 90 of the Employment Act

Holding

No; the limitation bar is mandatory and the Court's hands are tied by statute, even where sympathies lie with the Applicant

Reasoning

Section 90 of the Employment Act bars civil actions arising out of the Act or a contract of service not commenced within three years. Relying on Beatrice Kahai Adagala v Postal Corporation of Kenya, the Court noted the section is in mandatory terms, the limitation period is never extended in contract matters, and extension is only available in tort claims under sections 27 and 28 of the Limitation of Actions Act. The Applicant's claim, brought more than a decade after termination (limitation setting in around March 2015), has 'no life'.

p. 2

Legal principles established

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  • The three-year limitation period in section 90 of the Employment Act is mandatory and admits of no extension in claims based on contract of service; extension is only possible in tort claims under sections 27 and 28 of the Limitation of Actions Act

Court orders

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  1. 1.The motion is dismissed
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 90 of the Employment Act and 27 and 28 of the Limitation of Actions Act (Cap. 22), on an ex parte application transferred from the High Court at Kisii

Relief refused

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Leave to file a suit out of time against the Respondent with costs in the cause

Section 90 of the Employment Act is mandatory; the limitation period expired in March 2015 and cannot be extended in contract-based employment claims

p. 2

Costs

No order as to costs; each party to bear their own costs in effect ('with no order as to 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 claim is brought more than a decade later and has no life. Therefore, having regard to the matter the only available action is that the motion is dismissed, albeit with no order as to costs since limitation of time set in on some date in March 2015. Orders accordingly.
p. 2Final orders - dismissal of the motion for leave to file suit out of time
the hands of this Court are tied by statute. There is no wriggle room and the fact the Court is expressly barred by section 90, there is no room to extend time or otherwise salvage the situation the Applicant finds herself in
p. 2Mandatory nature of section 90 Employment Act limitation period
the limitation period is never extended in matters based on contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of sections 27 and 28 of the Limitation of Actions Act
p. 2Extension of limitation - contract vs tort claims

Issues in the judgment

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minor

The judgment states the Applicant was 'terminated after 11 years of service in November 2011', yet employment began in July 2010 - internally inconsistent employment duration; also, the limitation analysis refers to March 2015, consistent with the November 2011 termination date.

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, "Abere v Wakenya Pamoja Sacco Society Ltd (Miscellaneous Case E008 of 2025) [2025] KEELRC 1773 (KLR)", Case Analysis (2025). Ex Parte Application dated 27th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1773/eng@2025-06-18

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