Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2013] KEELRC 577 (KLR)

MARIA MACHOCHO V TOTAL KENYA LIMITED [2013] KEELRC 577 (KLR)

Industrial Court of Kenya
15 March 2013
RSRadido Stephen
1,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court confirmed it cannot extend the three-year deadline for filing employment claims, so workers must act quickly or lose their claim.

What this practically means

#

Executive summary

#
The applicant, dismissed on 1 December 2006, sought leave under sections 12(3)(viii) and 20 of the Industrial Court Act, 2011, sections 27 and 28 of the Limitation of Actions Act and Order 37 rule 6 of the Civil Procedure Rules to file a claim for breach of employment contract out of time. The court directed inter partes hearing, doubting its jurisdiction given section 90 of the Employment Act, 2007, which sets a three-year limitation period for employment claims without envisaging extension. The court held that sections 27 and 28 of the Limitation of Actions Act apply only to negligence, nuisance and breach of duty, not contract, following Visram J in Timothy M Mukalo v Reuben Alubale Shiramba & 3 others. Relying on the Court of Appeal decision in Divecon Ltd v Samani, the court found that section 4(1) of the Limitation of Actions Act confers a substantive right on defendants which cannot be divested, that Part III of that Act does not apply to contract actions, and that the Industrial Court's wide discretionary powers under section 12(3)(viii) cannot override the statutory limitation. The court rejected the applicant's arguments including the suggested incorporation of Part III into the Employment Act via section 31. The application for leave to file suit out of time was dismissed with no order as to costs.

Key legal issues

#
01

Applicability of sections 27 and 28 of the Limitation of Actions Act

Holding

They apply only to actions based on negligence, nuisance or breach of duty, not contract

Reasoning

The court adopted the brief ruling of Visram J in Timothy M Mukalo v Reuben Alubale Shiramba & 3 others to the effect that sections 27 and 28 apply only to negligence, adding nuisance and breach of duty. Since the applicant's claim was for breach of employment contract, those extension provisions were inapplicable.

p. 2
02

Jurisdiction to extend time for contract of service claims

Holding

The Court has neither statutory jurisdiction nor discretion to grant leave or extend time

Reasoning

Following Divecon Ltd v Samani, the court held that section 4(1) of the Limitation of Actions Act gives a defendant a substantive right of limitation which cannot be divested; Part III extension provisions do not apply to contract. Section 12(3)(viii) of the Industrial Court Act, akin to inherent powers, cannot override this substantive right. Section 90 of the Employment Act sets a 3-year period with no extension mechanism.

p. 3

Legal principles established

#
  • Section 4(1) of the Limitation of Actions Act confers a substantive right on a defendant which cannot be divested by implication; Part III of the Act does not apply to actions based on contract
  • Section 90 of the Employment Act, 2007 reduced the limitation period for employment claims to 3 years and does not envisage extension of time

Court orders

#
  1. 1.The application for leave to file a claim out of time is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Industrial Court Act12(3)(viii), 20
  • Limitation of Actions Act27, 28, 31, 4(1)
  • Employment Act, 200790
  • Employment Act, Cap 226
  • Civil Procedure RulesOrder 37 rule 6

Cases cited (5)

  • Stephen Ndungu Kariuki v G4S Security Services Ltd
    Nairobi Industrial Cause No. 1296 of 2010
  • Eastern Produce (K) Ltd v Earnest Omose Osore
    Eldoret High Court Civil Appeal No. 50 of 2000
  • James Muchunku Mbaabu v PS Ministry of Education & Another
    Meru High Court Misc Case No. 17 of 2011
  • Timothy M Mukalo v Reuben Alubale Shiramba & 3 others
    [2005] eKLR
  • Divecon Ltd v Samani
    [1995-1998] 1 EA 48
Jurisdiction invoked
Sections 12(3)(viii) and 20 of the Industrial Court Act, 2011; sections 27 and 28 of the Limitation of Actions Act; Order 37 rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "MARIA MACHOCHO V TOTAL KENYA LIMITED [2013] KEELRC 577 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/577/eng@2013-03-15

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