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Court of AppealAllowedCivil Appeal No. 247 of 2014· [2017] KECA 701 (KLR)

Donald Osewe Oluoch v Kenya Airways Limited [2017] KECA 701 (KLR)

Court of Appeal
10 March 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,556 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that suing in the wrong court does not pause limitation deadlines, striking out Kenya Airways' claim as too late.

What this practically means

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Executive summary

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The appellant, a former Kenya Airways pilot, resigned in June 2007 in breach of a three-year training bond. The airline sued him in the High Court in October 2009; that suit was struck out by the Court of Appeal in February 2013 for want of jurisdiction, as employment disputes fall outside the High Court's competence under the then-current regime. The airline then filed suit in the Employment and Labour Relations Court in August 2013. The appellant objected that the claim was time-barred. Nderi, J. dismissed the objection, holding that Section 90 of the Employment Act (a three-year limitation period) could not apply retroactively, that the six-year period under Section 4(1) of the Limitation of Actions Act governed, and that time stood still during the pendency of the earlier suit in the wrong forum, so the second suit was filed in time. The Court of Appeal allowed the appeal. It affirmed that Section 90 could not operate retroactively, the accrued six-year period being a substantive right. However, it held that limitation of actions in Kenya is entirely statutory: Part III of the Limitation of Actions Act exhaustively specifies when limitation periods may be extended, and pendency of a suit in a court without jurisdiction is not a statutory ground for excluding time. The passage from Rustomji relied on by the judge was a verbatim reproduction of Section 14 of the Indian Limitation Act, a codified Indian principle inapplicable in Kenya, and the US decisions cited were not shown to rest on statutes in pari materia with Kenyan law. The Court set aside the ruling, allowed the preliminary objection, struck out the airline's suit, and awarded the appellant costs of the suit and of the appeal.

Key legal issues

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01

Whether Section 90 of the Employment Act, 2007 applies to a cause of action that accrued before the Act came into operation

Holding

Section 90 of the Employment Act does not apply retroactively; the applicable regime for a cause of action arising on 25th June 2007 was Section 4(1) of the Limitation of Actions Act, providing a six-year period.

Reasoning

The cause of action arose on 25th June 2007, before the Employment Act became operational in August 2008. At that date the respondent had an accrued benefit of a six-year limitation period under the Limitation of Actions Act. Reducing that period to three years would affect a substantive right, and there is nothing in the Act, express or otherwise, indicating an intention for retroactive operation. Statutes are not construed to operate retrospectively without clear intention.

p. 3
02

Whether the pendency of a suit in a court without jurisdiction suspends the running of the limitation period

Holding

It does not. The trial judge's reliance on a passage from Rustomji was in fact reliance on Section 14 of the Indian Limitation Act, a codified Indian principle with no counterpart in Kenyan statute. The Industrial Court's ruling was accordingly set aside and the respondent's suit struck out as time-barred.

Reasoning

Part III of the Limitation of Actions Act exhaustively sets out when limitation periods may be extended, and pendency of litigation in a wrong forum is not among those grounds. The passage from Rustomji relied on by the judge reproduces Section 14 of the Indian Limitation Act, a codified principle not applicable in Kenya. Nor was it shown that the statutory provisions underlying the cited US decisions are in pari materia with Kenyan law. Because more than six years had elapsed between accrual (25th June 2007) and filing in the Employment and Labour Relations Court (23rd August 2013), the claim was statute-barred.

p. 4

Legal principles established

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  • Limitation of actions in Kenya is entirely a matter of statute; there is no common law or imported principle permitting exclusion of time spent prosecuting a suit in a court without jurisdiction.
  • Time does not stop running for limitation purposes during the pendency of a suit filed in a wrong forum, because no Kenyan statute so provides.
  • A limitation provision reducing an existing limitation period cannot apply retroactively to a cause of action that accrued before the statute commenced, absent clear legislative intention.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the Industrial Court given on 11th July 2014 set aside
  3. 3.Appellant's preliminary objection dated 2nd October 2013 allowed
  4. 4.Respondent's suit, Industrial Cause No. 1362 of 2013, struck out
  5. 5.Costs of the suit and of the appeal awarded to the appellant

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActPart III
  • Limitation of Actions ActSection 31
  • Judicature ActSection 3
  • Indian Limitation ActSection 14

Cases cited (9)

  • Municipality of Mombasa vs. Nyali Limited
    [1963] EA 371
  • IGA vs. Makerere University
    [1972] EA 65
  • A. G and another vs. Andrew Maina Githinji and another
    [2016] eKLR
  • Mary Osundwa v Sugar Company Ltd
    [2002] eKLR
  • Thuranira Karauri vs Agnes Ncheche
    [1997] eKLR
  • Panafrica Builders and Contractors Limited vs. Singh
    [1984] KLR 121
  • Samuel Kamau Macharia vs. Kenya commercial bank
    [2012] eKLR
  • Valenzuela vs. Kraft, Inc
    (1986) 801 F2d 1170
  • Cynthia Deblanc v St. Tammany Parish School Board
    No. 15-30367
On appeal from
Industrial Court at Nairobi
Industrial Cause No. 1362 of 2013
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over an appeal from the Industrial Court (Employment Act regime); appeal from a ruling and order of the Industrial Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Donald Osewe Oluoch v Kenya Airways Limited [2017] KECA 701 (KLR)", Case Analysis (2017). Civil Appeal No. 247 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/701/eng@2017-03-10

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