David Onsongo Mogaka v Wakenya Pamoja SACCO Society Ltd
The bottom line
#A Kenyan court struck out a gratuity claim filed 23 years late, confirming that delay in filing employment claims cannot be excused.
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 Court lacks pecuniary jurisdiction over the claim given the Claimant's salary below the Kshs. 80,000 threshold
- 2.Whether the claim is statute-barred under section 89 of the Employment Act / section 4(1) of the Limitation of Actions Act
- 3.Whether the suit is an abuse of court process and should be struck out
Key legal issues
#Limitation of employment claims
The claim, filed about 23 years after retirement in 2002, is time-barred under section 4(1) of the Limitation of Actions Act and must be struck out.
The court held that the applicable law required the suit to be filed within six years of accrual of the cause of action. Had the Claimant filed in 2002 or within the prescribed period, the Respondent would have had no escape. Since the suit was filed decades later, it is time-barred and the only outcome is striking out.
Pecuniary jurisdiction of the ELRC
The court did not make a definitive finding on the jurisdictional objection based on the Kshs. 80,000 salary threshold, instead disposing of the matter on limitation.
Although the Respondent argued lack of pecuniary jurisdiction under section 29(3) of the ELRC Act and Gazette Notice No. 6024 of 2018, the court's disposition addressed only limitation. The jurisdiction question was framed but left unresolved, the suit having been struck out on time-bar grounds.
Legal principles established
#- A suit filed beyond the limitation period prescribed by section 4(1) of the Limitation of Actions Act must be struck out, and the delay cannot be cured by Article 159 of the Constitution.
Court orders
#- 1.The suit is struck out
- 2.No order as to costs - each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (jurisdiction of the ELRC); suit disposed of on limitation under section 4(1) of the Limitation of Actions Act
Relief refused
#Claimant's claim for gratuity of Kshs. 737,560/-
Suit filed approximately 23 years after the cause of action accrued in 2002, beyond the six-year limitation period
Claimant's plea for conservatory orders / relief notwithstanding delay
Delay cannot be cured by Article 159 of the Constitution
Costs
No order as to costs; each party will bear their 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.
A reading of the law applicable at the time makes it apparent that the Claimant ought to have filed the suit within 6 years of the accrual of the cause of action in terms of section 4(1) of the Limitation of Actions Act.
Sadly, as at the point of filing suit, the present suit against the Respondent is time barred. The inevitable outcome is that the suit is for striking out. Suit is struck out with no order as to costs, meaning each party will bear their own costs.
Had the Claimant moved the Court in 2002 or within the period prescribed by law there would have been no escape route for the Respondent.
Issues in the judgment
#Cause number dated 2026 with judgment delivered 28 September 2026; dates appear futuristic relative to typical filings.
Court applies six-year limitation under section 4(1) Limitation of Actions Act while Respondent argued three years under section 89 Employment Act, without reconciling the two.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Onsongo Mogaka v Wakenya Pamoja SACCO Society Ltd", Case Analysis (2026). Cause No. E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2590/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.