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Court of AppealPartially AllowedCivil Appeal (Nairobi)· [2017] KECA 204 (KLR)

Maersk Kenya Ltd v Tsuma (Civil Appeal 209 of 2015) [2017] KECA 204 (KLR)

Court of Appeal of Kenya
10 November 2017
2,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled a court procedural rule cannot extend statutory limitation deadlines, striking out a six-year-late wrongful dismissal suit.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal by Maersk Kenya Limited against a ruling of the Employment and Labour Relations Court in Industrial Cause No. 374 of 2013, in which the learned judge had declined to strike out the respondent's wrongful dismissal suit as time barred. The respondent was summarily dismissed on 20th November 2006; his cause of action therefore accrued before the Employment Act 2007 came into force, and the applicable limitation period was the six-year limit in section 4(1)(a) of the Limitation of Actions Act, expiring on 19th November 2012. The suit was filed on 21st March 2013. The lower court had relied on order 50 rule 4 of the Civil Procedure Rules to exclude 210 days of annual Christmas recesses between 2006 and 2012, thereby extending the limitation period by about seven months. The Court of Appeal held that order 50 rule 4, as subsidiary legislation made under the Civil Procedure Act, applies only to computation of time under the Rules or a court order, and cannot enlarge an absolute limitation period fixed by Parliament; Part III of the Limitation of Actions Act exhaustively governs extensions and makes no reference to the Rules. The court adopted the reasoning in the Mokombo Ole Simel decision and distinguished Keziah Stella Pyman. The estoppel argument under section 39 was rejected as an afterthought; the respondent had slept on his rights. The appeal was allowed, the lower court's ruling set aside, the respondent's suit struck out, and costs of both the suit and the appeal awarded to the appellant.

Key legal issues

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01

Whether order 50 rule 4 of the Civil Procedure Rules can extend the limitation period under section 4(1)(a) of the Limitation of Actions Act

Holding

It cannot; the rule is confined to time under the Rules or court orders and has no application to statutory limitation periods.

Reasoning

The Civil Procedure Rules are subsidiary legislation made under the Civil Procedure Act. By section 33 of the Interpretation and General Provisions Act, an act under an Act includes acts under subsidiary legislation made under that Act. Order 50 rule 4 governs computation of time under the Rules or court orders only. Part III of the Limitation of Actions Act exhaustively sets out how its limitation periods may be extended and makes no reference to the Rules. Hence a procedural rule cannot augment a statutory limitation period fixed by Parliament.

p. 4
02

Whether the respondent's claim was time barred

Holding

Yes. The cause of action accrued on 20th November 2006 and the six-year period expired on 19th November 2012; the suit filed on 21st March 2013 was out of time.

Reasoning

The cause of action arose on 20th November 2006 upon summary dismissal, before the Employment Act 2007 came into force, so the six-year limit in section 4(1)(a) of the Limitation of Actions Act applied. Computed plainly, the deadline was 19th November 2012. The learned judge's extension of the period by excluding 210 days of Christmas recesses had no support in law and amounted to a misdirection; the claim filed in March 2013 was therefore time barred.

p. 3
03

Whether the appellant was estopped from pleading limitation under section 39 of the Limitation of Actions Act

Holding

No. There was no contract not to plead limitation and no estoppel was demonstrated; the respondent simply delayed filing suit.

Reasoning

Section 39 stops time where there is a contract not to plead limitation or where a party is estopped. The materials disclosed no such contract, and the respondent could not show how the appellant was estopped, especially as he was dismissed on 20th November 2006 and nothing prevented him from filing suit within the stipulated period thereafter. The estoppel argument, raised for the first time on appeal, was an afterthought.

p. 5

Legal principles established

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  • Rules of court (subsidiary legislation) cannot enlarge a limitation period fixed by an Act of Parliament; only the statute itself, through its own extension provisions, can do so.
  • Order 50 rule 4 of the Civil Procedure Rules applies only to computation of time under the Civil Procedure Rules or a court order, not to time limits in the Limitation of Actions Act.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the lower court dismissing the appellant's preliminary objection dated 9th July 2014 set aside
  3. 3.Respondent's suit, Industrial Cause No. 374 of 2013, struck out
  4. 4.Costs of the suit and of the appeal awarded to the appellant

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)(a)
  • Limitation of Actions Actsection 31
  • Limitation of Actions Actsection 39
  • Limitation of Actions Act Cap 22Part III (extension of the period of limitation)
  • Civil Procedure Rulesorder 50 rule 4
  • Civil Procedure Rules (repealed)order 49 rule 5
  • Civil Procedure Rules (repealed)order 49 rule 3A
  • Interpretation and General Provisions Actsection 33
  • Interpretation and General Provisions Actsection 23(2)
  • Employment Actsection 90
  • Employment Act Cap 226 (repealed)
  • Civil Procedure Act
  • Penal Codesection 275
  • Law Reform Actsection 9(2) and (3)

Cases cited (5)

  • Keziah Stella Pyman & 2 others vs Paul Mwololo Mutevu & 8 others
    [2013] eKLR
  • Mary Kasiwa vs Scorpio Enterprises Limited
    [2103] eKLR
  • James Mugera Igati vs Public Service Commission of Kenya
    [2014] eKLR
  • Republic vs. Public Procurement Administrative Review Board & another ex parte Teachers Service Commission
    [2015] eKLR
  • Mokombo Ole Simel & Others vs. County Council of Narok & Others
    Nairobi HCMA No. 361 of 1994
On appeal from
Employment and Labour Relations Court
Industrial Cause No. 374 of 2013
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over appeals from the Employment and Labour Relations Court

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, "Maersk Kenya Ltd v Tsuma (Civil Appeal 209 of 2015) [2017] KECA 204 (KLR)", Case Analysis (2017). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/204/eng@2017-11-10

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