Okello v University of Nairobi (Appeal E055 of 2024) [2025] KEELRC 2964 (KLR)
The bottom line
#Kenyan courts cannot extend the three-year deadline for filing employment claims, even where a magistrate earlier granted permission to file late.
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 Trial Court erred by dismissing the claim as time-barred despite the existence of a valid court order extending time (Kisumu MCC Misc. No. E271 of 2023)
- 2.Whether the Respondent's failure to pay salary for over six years amounted to constructive dismissal and a breach of employment law
- 3.Who should bear costs of the suit
Key legal issues
#Whether an order granting leave to file suit out of time under section 90 of the Employment Act is effective
It is not: the magistrates' court lacked jurisdiction to extend time, the section being couched in mandatory terms with no provision for extension, and the resulting leave was an illegal extension conferring no right
Section 90 of the Employment Act mandates that employment claims be filed within three years of the act complained of, or twelve months after cessation of a continuing injury. Unlike section 4(1) of the Limitation of Actions Act, it contains no mechanism for extension. Following Radido J. in Josephat Ndirangu v Henkel Chemicals, the court held that no court has jurisdiction to extend time once it has lapsed, so the earlier leave order could not revive the claim.
Whether Article 159(2)(d) could override the limitation bar
No; Article 159 cannot be invoked against express legal provisions, and substantive justice cannot save a dead claim
The Appellant urged the court to prioritise substantive justice over procedural technicalities on the basis of Article 159(2)(d). The court rejected this, holding that access to justice through the courts in employment disputes is anchored in statutory provisions, section 90 being paramount, and that constitutional provisions of Article 159 cannot be waved in the face of express legal provisions.
Whether non-payment of salary for over six years amounted to constructive dismissal
The court did not reach the merits; the claim was time-barred and was dismissed on that point alone
Although the Appellant argued that sustained non-payment of salary created an intolerable working environment justifying termination by the employee, the court disposed of the appeal purely on limitation. Since the claim had no business being in court, the constructive dismissal question was not determined.
Legal principles established
#- The Employment and Labour Relations Court has no jurisdiction to extend time to commence claims arising out of employment contracts once the three-year limitation period under section 90 of the Employment Act has expired
- A grant of leave to file suit out of time by a court without jurisdiction to do so is an illegal extension that confers no right to pursue a time-barred claim
- Article 159 of the Constitution (substantive justice) cannot override express statutory limitation provisions
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court (Kisumu)
- Suit commenced by statement of claim dated 24th February 2024
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Magistrate's Court in employment disputes; limitation governed by section 90 of the Employment Act and Article 159(2)(d) of the Constitution invoked by the Appellant
Relief refused
#Appeal against dismissal of the claim as time-barred
Section 90 of the Employment Act contains no provision for extension of time; the magistrates' court lacked jurisdiction to extend time, so the earlier leave was an illegal extension conferring no right to prosecute a dead claim
Claims for declaration of constructive dismissal, salary arrears of Kshs. 463,000/-, general damages, interest and costs
The claim was statute-barred and, as it had no business being in court, the appeal was dismissed
Costs
Appeal dismissed with costs to the Respondent
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.
The Court’s answer and what I understand to be the correct legal position is that the Court has no jurisdiction to extend time to commence claims arising out of contract, employment contract included once time has expired or lapsed.
Article 159 cannot be waved in the face of express legal provisions.
despite there having been an illegal extension of leave to file suit out of time, the same did not confer any right on the Appellant or any Court to deal with a dead claim
As the case had no business being in court, this Appeal is dismissed with costs to the Respondent.
Issues in the judgment
#The judgment does not state the appeal case number or the neutral citation, and does not identify the trial magistrate or the date of the trial court's judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello v University of Nairobi (Appeal E055 of 2024) [2025] KEELRC 2964 (KLR)", Case Analysis (2025). Not stated in judgment (Kisumu Employment and Labour Relations Court appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2964/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.