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ELRCDismissedNot stated in the excerpt· [2013] KEELRC 602 (KLR)

Esther Kahai Kihima v Trident Insurance Company Limited [2013] KEELRC 602 (KLR)

Industrial Court (Employment and Labour Relations Court)
13 June 2013
MMM. Mbaru
1,163 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed that older employment claims face a six-year filing window, not the three-year limit in the 2007 Employment Act.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection raised by the respondent in its statement of reply, contending that the claimant's employment claim, filed in October 2012, was time barred under section 90 of the Employment Act, 2007, which imposes a three-year limitation period. The respondent argued that the claimant's contract was terminated on 1st July 2007, that the three-year period lapsed on 30th June 2010, and that the claimant could not rely on ill health or section 27 of the Limitation of Actions Act to extend time. The claimant's advocate countered that the applicable law at the time of termination was the repealed Employment Act, Cap 226, and read with the Limitation of Actions Act provided for six years, since the Employment Act, 2007 only came into force on 6th June 2008 and is not retrospective. The court agreed, holding that the Employment Act, 2007 contains no retrospective provision and that its only effect on pre-existing contracts is the amendment of subsisting terms. Section 93's transitional provisions apply only to continuance of valid contracts and do not extinguish claims valid before commencement. Disputes on limitation for contracts terminated before commencement must be determined under the repealed Cap 226 and the Limitation of Actions Act. The claim, filed roughly five years and two months after termination, was within the six-year period. The preliminary objection was declined and parties directed to set down the matter for hearing.

Key legal issues

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01

Retrospective application of section 90 of the Employment Act, 2007

Holding

Section 90 of the Employment Act, 2007 does not apply to contracts of service terminated before its commencement; the applicable limitation law is section 4(1) of the Limitation of Actions Act (six years for contract claims)

Reasoning

The court found no provision in the Employment Act, 2007 giving it retrospective application. The only effect on pre-existing contracts is the amendment of subsisting contract terms. The transitional provisions in section 93 apply only to specific situations of continuance of valid contracts, not to extinguish accrued claims. Since the claimant's termination occurred on 1st July 2007, before commencement, her claim is governed by the six-year period in the Limitation of Actions Act.

p. 2
02

Whether the claim was filed within time

Holding

The claim filed in October 2012 was within the six-year limitation period from the 1st July 2007 termination, being about five years and two months later

Reasoning

The cause of action is founded on a contract of employment, and section 4(1) of the Limitation of Actions Act allows six years for actions founded on contract. The claimant filed approximately eight months before the deadline and should not be penalised for coming to court within time.

p. 2

Legal principles established

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  • The Employment Act, 2007 has no retrospective application and does not extinguish claims that were valid before its commencement
  • Disputes on limitation for contracts terminated before the commencement of the Employment Act, 2007 are governed by the repealed Employment Act, Cap 226 and the Limitation of Actions Act

Court orders

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  1. 1.The preliminary objection is declined
  2. 2.Parties directed to set down the matter for hearing by taking hearing dates at the Court Registry

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 93
  • Employment Act (repealed), Cap 226
  • Limitation of Actions Act, Cap 22section 4(1)
  • Limitation of Actions Actsection 27
Jurisdiction invoked
Original jurisdiction over employment claims under the Employment Act, 2007 (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Kahai Kihima v Trident Insurance Company Limited [2013] KEELRC 602 (KLR)", Case Analysis (2013). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/602/eng@2013-06-13

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