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ELRCDismissedCause No 1467 of 2011· [2012] KEELRC 202 (KLR)

JEREMIAH OJWANG OJAK V CENTRAL BANK OF KENYA [2012] KEELRC 202 (KLR)

Industrial Court of Kenya
28 November 2012
670 words in judgment
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The bottom line

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A Kenyan court dismissed an unfair dismissal claim because it was filed more than six years after the dismissal, and old dismissal rules still apply to old cases.

What this practically means

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Executive summary

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The claimant filed a claim on 29th August 2010 seeking reliefs for alleged unlawful and unfair dismissal effected on 8th October 2004. The respondent objected in limine that the claim was statutorily time-barred. The court, presided over by Mathews N. Nduma, Principal Judge, held that the objection went to jurisdiction and had to be decided immediately. It found that the law applicable to the 2004 dismissal was the repealed Employment Act, Cap.226, since the Employment Act, 2007 - repealing Cap.226 without savings - does not operate retroactively, following the court's own decision in Daniel Songa Sila v Property Development Management Ltd. Because Cap.226 contained no limitation clause, the Limitation of Actions Act, Cap.22 governed, imposing a six-year bar on actions founded on contract. The claim, filed over six years after the cause of action, was therefore out of time. The claimant had neither sought nor applied for extension of time. Citing Gathoni v Kenya Co-operative Creameries on the protective purpose of limitation law, the court held it lacked jurisdiction and dismissed the claim with no order as to costs. The judgment contains an internal inconsistency on the filing date, recording 29th August 2010 at the outset but 29th August 2011 in the limitation analysis; the discrepancy does not affect the outcome since either date exceeds six years from the 2004 dismissal.

Key legal issues

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01

Retroactivity of the Employment Act, 2007

Holding

The 2007 Act does not apply to dismissals occurring before its commencement; the claim is governed by the repealed Employment Act, Cap.226

Reasoning

The dismissal occurred on 8th October 2004, when Cap.226 was in force. Cap.226 was repealed by Section 92(1) of the 2007 Act without savings, and Section 93(1) only preserved subsisting contracts of service. The court, relying on its own prior decision, held the 2007 Act was not intended to operate retroactively and thus its limitation provision (Section 90) does not govern the claim.

p. 2
02

Applicable limitation period

Holding

Since Cap.226 had no limitation clause, Section 4(1) of the Limitation of Actions Act, Cap.22 applies - a six-year bar for actions founded on contract

Reasoning

The claim is founded on a contract of employment and seeks statutory remedies. The applicable law being the repealed Act, which contained no limitation clause, the general limitation statute applies, imposing a six-year bar on contract actions and actions to recover sums recoverable by virtue of a written law.

p. 2
03

Effect of filing out of time

Holding

A claim filed outside the limitation period robs the court of jurisdiction and must be dismissed; no extension of time was sought

Reasoning

The claim was filed on 29th August 2010 (judgment records 2011 in one passage), well over six years after the 8th October 2004 dismissal. The claimant neither sought nor applied for extension of time. Limitation protects defendants against stale claims and deprives the court of jurisdiction, warranting dismissal.

p. 2

Legal principles established

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  • The Employment Act, 2007 does not apply retroactively to employment terminations effected before its enactment
  • A limitation defence goes to jurisdiction and must be raised and decided at the earliest opportunity
  • Where the applicable repealed Act had no limitation clause, the Limitation of Actions Act's six-year bar for contract actions applies

Court orders

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  1. 1.The claim is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 92(1)
  • Employment Act, 2007Section 93(1)
  • Employment Act, Cap.226 (repealed)null
  • Limitation of Actions Act, Cap.22Section 4(1)

Cases cited (4)

  • Owners of the Motor Vessel "Lillian S" V Gatel Oil (Kenya) Ltd
    Civil Appeal No.50 of 1989
  • Daniel Songa Sila Vs Property Development Management Ltd
    Cause No.374 of 2011
  • Zakaria Liambu Andika Vs Cheer Logic Management Consultants Ltd.
    Cause No.1075 of 2010
  • Gathoni V/S Kenya Co-operative Creameries Limited
    Civil Appl. No.NAI 22 OF 1981, 1982 EKLR
Jurisdiction invoked
Statutory jurisdiction of the Industrial Court; limitation bar under the Limitation of Actions Act, Cap.22, Section 4(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "JEREMIAH OJWANG OJAK V CENTRAL BANK OF KENYA [2012] KEELRC 202 (KLR)", Case Analysis (2012). Cause No 1467 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/202/eng@2012-11-28

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