JEREMIAH OJWANG OJAK V CENTRAL BANK OF KENYA [2012] KEELRC 202 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Retroactivity of the Employment Act, 2007
The 2007 Act does not apply to dismissals occurring before its commencement; the claim is governed by the repealed Employment Act, Cap.226
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 Cap.226 was repealed by Section 92(1) of the 2007 Act without savings, and Section 93(1) only preserved subsisting contracts of service.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.
Applicable limitation period
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
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 The applicable law being the repealed Act, which contained no limitation clause, the general limitation statute applies, imposing a six-year bar on contract actions and actions to recover sums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.
Effect of filing out of time
A claim filed outside the limitation period robs the court of jurisdiction and must be dismissed; no extension of time was sought
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.
Legal principles established
#- 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- Where the applicable repealed Act had no limitation clause, the Limitation of Actions Act's six-year bar for contract actions applies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
#- 1.The claim is dismissed with no order as to costs
- Jurisdiction invoked
- Statutory jurisdiction of the Industrial Court; limitation bar under the Limitation of Actions Act, Cap.22, Section 4(1)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Heinz-Peter Herman v African Safari Club Limited (In Liquidation) & another[2019] KEHC 1750 (KLR)11 Oct 2019
- Duncan Kaburu Manyara v Teachers Service Commission [2017] KEELRC 1870 (KLR)[2017] KEELRC 1870 (KLR)25 Jan 2017
- Clarice Odhiambo v Coca-Cola Company & 2 Others [2015] KEELRC 270 (KLR)[2015] KEELRC 270 (KLR)28 Oct 2015
- Kenya Union of Printing Publishing Paper Manufacturers and Allied Workers v Printing Industries Limited [2015] KEELRC 1022 (KLR)[2015] KEELRC 1022 (KLR)5 Jun 2015
- Kenya Union of Printing Publishing Paper Manufacturers and Allied Workers v Printing Industries Limited [2015] KEELRC 1022 (KLR)[2015] KEELRC 1022 (KLR)5 Jun 2015followed
- Peter Kangethe Kamau v Telkom Kenya [2015] KEELRC 1512 (KLR)[2015] KEELRC 1512 (KLR)26 Jan 2015followed
- Anne Waithera Kimani v Stephen Ndungu Njenga [2014] KEELRC 835 (KLR)[2014] KEELRC 835 (KLR)5 Mar 2014applied
- Agnes Murugi Mwangi v Barclays Bank of Kenya Limited [2013] KEELRC 910 (KLR)[2013] KEELRC 910 (KLR)27 Nov 2013followed
Cite this brief
#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.