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ELRCDismissedEx Parte Application dated 27th January 2025

Abere v Wakenya Pamoja Sacco Society Limited (Miscellaneous Case E008 of 2025) [2025] KEELRC 1808 (KLR)

Employment and Labour Relations Court
18 June 2025
NMNzioki wa Makau
569 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a former employee's attempt to revive a decade-old employment claim, confirming the three-year filing deadline cannot be extended.

What this practically means

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Executive summary

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The Applicant moved the Court by an 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 that she was employed as a teller in July 2010 and her employment was terminated in November 2011 while she was expectant; she learned of the termination from colleagues, suffered premature labour pains and was later diagnosed with stress-related conditions. She sought the Court's indulgence ex debito justitiae. The Court considered section 90 of the Employment Act, which mandates that civil actions arising out of the Act or a contract of service be commenced within three years, displacing section 4(1) of the Limitation of Actions Act. Relying on the Court of Appeal's decision in Beatrice Kahai Adagala v Postal Corporation of Kenya, which itself applied Divecon Limited v Samani and Josephat Ndirangu v Henkel Chemicals, the Court held that the limitation period is never extended in contract matters and can only be extended in tort claims under sections 27 and 28 of the Limitation of Actions Act. Although sympathising with the Applicant, the Court found its hands tied by statute: the claim was brought more than a decade late, limitation having set in around March 2015. The Court dismissed the motion but, given the circumstances, made no order as to costs. Judgment delivered at Kisii on 18th June 2025 by Nzioki wa Makau, Judge.

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 may grant leave to the Applicant to file a suit out of time against the Respondent notwithstanding section 90 of the Employment Act

Key legal issues

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01

Whether the Court has discretion to extend time for filing an employment claim beyond the three-year period in section 90 of the Employment Act

Holding

It does not; section 90 is mandatory and bars the claim brought more than a decade after termination

Reasoning

Section 90 of the Employment Act excludes the operation of section 4(1) of the Limitation of Actions Act and requires employment claims to be filed within three years. Following the Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya, the limitation period is never extended in contract matters; extension is only available in tort claims under sections 27 and 28 of the Limitation of Actions Act. The Applicant's claim, filed more than a decade after the 2011 termination (limitation setting in around March 2015), is statute-barred, however sympathetic the Court may be.

p. 2

Legal principles established

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  • A claim based on a contract of employment must be filed within three years under section 90 of the Employment Act, and the limitation period cannot be extended; it can only be extended in claims founded on tort under sections 27 and 28 of the Limitation of Actions Act

Court orders

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  1. 1.The motion seeking leave to file a suit out of time 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.

NM
majority

Wrote the judgment

Jurisdiction invoked
Section 90 of the Employment Act read with section 4(1) of the Limitation of Actions Act (Cap. 22)

Relief refused

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Leave to file a suit out of time against the Respondent (ex debito justitiae)

Section 90 of the Employment Act is mandatory and bars claims not filed within three years; limitation set in around March 2015

p. 2

Costs

No order as to costs (motion dismissed 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.

Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act 2007 which we have quoted verbatim herein above, is in mandatory terms.
p. 2Mandatory nature of section 90 Employment Act (as cited from Adagala)
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.
p. 2Final orders - dismissal of the motion

Issues in the judgment

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minor

Internal inconsistency in the judgment's chronology: employment stated as beginning in July 2010 with termination 'after 11 years of service in November 2011'

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 Limited (Miscellaneous Case E008 of 2025) [2025] KEELRC 1808 (KLR)", Case Analysis (2025). Ex Parte Application dated 27th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1808/eng@2025-06-18

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