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Court of AppealDismissedCivil Appeal (Application) No. 28 of 2014· [2015] KECA 257 (KLR)

Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR)

Court of Appeal of Kenya
6 November 2015
David Kenani MaragaD. K. MaragaSKS. Gatembu KairuAMA. K. Murgor
1,165 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an employment appeal because the underlying claim was filed years too late, showing the three-year employment claim deadline is absolute.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu on an application by Beatrice Kahai Adagala to review and set aside the court's order of 19th November 2014, by which her appeal against the Postal Corporation of Kenya was dismissed for non-attendance under Rule 102(1) of the Court of Appeal Rules. The appellant explained that her advocate, though served with the hearing notice, failed to inform her, and she learnt of the dismissal only on 3rd May 2015; she filed the application on 18th May 2015, within the 30-day period allowed by Rule 102. The respondent opposed, contending there was no good reason for non-attendance and that the appeal had no chance of success. The court held that its discretion under the proviso to Rule 102(1) is wide and unfettered, turning on sufficient reason for non-attendance and arguability of the appeal. It disposed of the application on a single ground: limitation. The appellant's underlying claim in ELRC Cause No. 234 of 2013 for arrears and lost salary, arising from her summary dismissal on 11th August 2008, was filed on 15th August 2013 - well beyond the mandatory three-year period in Section 90 of the Employment Act 2007. Following Divecon Limited v Samani, the court held that the limitation period is never extended in contract claims, extension being available only in tort under Sections 27 and 28 of the Limitation of Actions Act. Restoring the appeal would therefore be futile. The application was dismissed with costs to the respondent. The decision below (the dismissal order) was left undisturbed.

Key legal issues

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01

Limitation in employment contract claims

Holding

Section 90 of the Employment Act 2007 imposes a mandatory three-year limitation period for claims arising out of a contract of service, which is not extendable; extension is available only in tort under Sections 27 and 28 of the Limitation of Actions Act

Reasoning

The appellant was dismissed on 11th August 2008 and should have filed by 10th August 2011, but filed on 15th August 2013. The court quoted Section 90 verbatim and relied on Divecon Limited v Samani, as relied on by Radido J in Josephat Ndirangu v Henkel Chemicals, to hold that the contractual limitation period is never extended. Even if the appeal were restored it would fail on this ground.

p. 2
02

Restoration of appeal dismissed for non-attendance

Holding

Although the court has wide discretion under the proviso to Rule 102(1), restoration will be refused where the appeal has no chance of success

Reasoning

The application was filed within the 30-day period required by Rule 102 and was based on the advocate's failure to inform the appellant of the hearing date. The court sympathised but held that restoring the appeal would be futile since it would be dismissed on limitation regardless.

p. 3

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 that limitation period cannot be extended; extension is only available in tort claims under Sections 27 and 28 of the Limitation of Actions Act
  • In an application under the proviso to Rule 102(1) to restore an appeal dismissed for non-attendance, the court's discretion is wide and unfettered and turns on sufficient reason for non-attendance and whether the appeal is arguable

Court orders

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  1. 1.The application for review and restoration of the appeal is dismissed
  2. 2.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 102(1)
  • Employment Act 2007Section 90
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Limitation of Actions Act (Cap. 22)Sections 27 and 28

Cases cited (2)

  • Divecon Limited -vs- Samani
    [1995-1998] 1 EA P.48
  • Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited
    [2013] eKLR
On appeal from
Court of Appeal at Kisumu
Civil Appeal No. 28 of 2014
Jurisdiction invoked
Proviso to Rule 102(1) of the Court of Appeal Rules (application for review and restoration of an appeal dismissed for non-attendance)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 28 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/257/eng@2015-11-06

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