MARTIN MAKAU KITHEKA V UCHUMI SUPERMARKETS LIMITED [2013] KEELRC 295 (KLR)
The bottom line
#A Kenyan worker's claim for unpaid terminal dues was struck out because he filed it six and a half years after his employment ended — far past the six-year limit.
What this practically means
#Executive summary
#Key legal issues
#Retrospective application of the Employment Act, 2007 limitation period
Section 90 of the Employment Act, 2007 does not apply to a contract of service terminated on 1st June 2006, before the Act's commencement; the applicable limitation law is the repealed Employment Act, Cap 226 and section 4(1) of the Limitation of Actions Act
The court read the Employment Act, 2007 and found no provision giving it retrospective application. The only way it touches pre-existing contracts is by amending terms of still subsisting contracts. Section 93's transitional provisions concern continuance of valid contracts, but the claimant's contract had ended before commencement, so limitation must be determined under the repealed Act and the Limitation of Actions Act.
Whether the claim is time barred
Yes. The cause of action is founded on contract and accrued on 1st June 2006; the six-year limitation period expired on 1st June 2012, five months before the claim was filed on 5th December 2012
Section 4(1) of the Limitation of Actions Act bars actions founded on contract brought after six years from accrual of the cause of action. The claimant's employment was terminated on 1st June 2006 and dues paid on 28th August 2006. Filing on 5th December 2012 was six and a half years later, so the claim lapsed by operation of law on 1st June 2012.
Whether the claimant lacked capacity to bring the claim under the Trade Disputes Act regime
The court found that under the Trade Disputes Act, Cap 234, a unionised claimant with a collective bargaining agreement had audience before the Industrial Court, and a non-unionised claimant had recourse to the ordinary courts; capacity was not the decisive bar - time was
The court inferred from the claimant's own submissions that a collective bargaining agreement existed, making the claimant unionised with audience before the Industrial Court under the Trade Disputes Act. Even without a CBA, the claimant could have sued in the ordinary courts under his contract. Either way, limitation applied and had lapsed before the claim was filed.
Legal principles established
#- The Employment Act, 2007 does not apply retrospectively to contracts of service terminated before its commencement; disputes on limitation from such contracts are governed by the repealed Employment Act, Cap 226 and the Limitation of Actions Act
- Limitation is not a mere technicality but a substantive ground of law that a court must address
- Actions founded on contract may not be brought after the end of six years from the date the cause of action accrued
Court orders
#- 1.The preliminary objection dated 28th January 2013 is upheld
- 2.The claim filed on 5th December 2012 is struck out
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment disputes as asserted under the Labour Relations Act (as argued by the claimant); no specific constitutional or statutory provision invoked by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARTIN MAKAU KITHEKA V UCHUMI SUPERMARKETS LIMITED [2013] KEELRC 295 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/295/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.