HUMPHREY NYAGOE MAKORI v KENYA PORTS AUTHORITY [2013] KEELRC 420 (KLR)
The bottom line
#A Kenyan employment claim filed years after dismissal failed because the claimant missed the six-year deadline and offered no convincing explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 90 of the Employment Act, 2007 applies to a termination occurring in 2004
It does not apply; the applicable law was the Trade Disputes Act, Cap 234 and the six-year limitation under the Limitation of Actions Act
The termination occurred on 19th February 2004, before the Employment Act, the Labour Relations Act and the Labour Institutions Act came into force in 2007-2008. The court held that laws do not operate retrospectively, so the pre-2007 regime governed. Under that regime a contract-of-employment claim had a six-year limitation period and could be lodged in the High Court or subordinate courts. The claimant therefore had until 19th February 2010 and the application filed on 3rd May 2012 (stated as 3rd May 2010 in the judgment) was out of time.
Whether the delay was sufficiently explained to warrant extension of time
No; the medical note was not a formal medical report and the applicant's own document showed he was only a patient from 2007, leaving the 2004-2007 period unexplained
The court found the note from Marie Stopes Pangani Clinic to be a general notification rather than a formal medical report on letter-head setting out the condition and treatment history. The note stated the applicant had been a patient since 2007, meaning he had several years from 2004 to 2007 to lodge his claim without giving any account for that period. The court invoked the maxim that the law aids the vigilant, not the indolent, and held the explanation insufficient to justify exercise of discretion in his favour.
Whether Article 159(2)(d) of the Constitution and Section 20(1) of the Industrial Court Act override limitation periods
No; mandatory limitation provisions cannot be displaced absent overwhelming reasons, which were absent here
The court held that procedural rules are mandatory and exist to ensure an effective system of administration of justice, serving both the alleged wronged party and the alleged aggressor. The overriding-objective provisions in Article 159(2)(d) and Section 20 of the Industrial Court Act were not intended to replace prescribed procedure. Section 4(1)(a) of the Limitation of Actions Act and Section 90 of the Employment Act are expressed in mandatory terms and going against them requires overwhelming reasons, which this case did not present.
Legal principles established
#- Statutes do not operate retrospectively; the law in force at the time of the cause of action governs the claim
- Article 159(2)(d) of the Constitution and Section 20(1) of the Industrial Court Act cannot be used to displace mandatory limitation provisions
- Section 95 of the Civil Procedure Act on enlargement of time applies to acts in a claim already admitted, not to admitting a claim not allowed in law
- Where a specific procedure is prescribed by statute or rules, a party should follow it rather than invoke the court's inherent jurisdiction
Court orders
#- 1.The Notice of Motion dated 3rd May 2012 seeking extension of time to file the claim out of time is dismissed with costs to the Respondent
- Jurisdiction invoked
- Section 20(1) of the Industrial Court Act, Section 90 of the Employment Act, Section 26 of the Limitation of Actions Act, Sections 3 and 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HUMPHREY NYAGOE MAKORI v KENYA PORTS AUTHORITY [2013] KEELRC 420 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/420/eng@2013-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.