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ELRCStruck OutPetition No. 1 of 2013 (consolidated with Cause No. 49 of 2013)· [2013] KEELRC 890 (KLR)

Josephat Ndirangu v Henkel Chemicals (EA) Ltd [2013] KEELRC 890 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
8 November 2013
RSRadido Stephen
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee who waited over three years to sue for unfair dismissal lost his case because employment claims must be filed within three years, with no exceptions.

What this practically means

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Executive summary

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The Claimant, dismissed summarily by Henkel Chemicals (EA) Ltd on 24 August 2009 for insubordination, first sued in the Chief Magistrates Court, Mombasa, in 2010 but withdrew that suit for want of jurisdiction. He filed a Memorandum of Claim (Cause No. 49 of 2013) on 15 March 2013 seeking declarations that the dismissal was unlawful and terminal dues of Kshs 398,752. The Respondent filed a preliminary objection that the claim was time barred under section 90 of the Employment Act and an abuse of process. The Claimant then filed a constitutional Petition invoking Articles 41 and 159 and a motion to extend time. The court held that the Petition, filed four months after the Cause with identical parties, subject matter and reliefs, was an afterthought to circumvent the statutory scheme; the right to fair labour practices under Article 41 is given effect through the Employment Act and Labour Relations Act and cannot be invoked directly to bypass section 90. It found the Cause time barred, since it should have been filed by 24 August 2012, and held that section 90 contains no power of extension, following Divecon v Samani. The preliminary objection succeeded; the Petition and Cause No. 49 of 2013 were struck out, the motion to extend time was dismissed, and costs were awarded to the Respondent on both matters.

Key legal issues

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01

Duplication of causes of action via constitutional petition

Holding

The Petition was an afterthought filed to evade a time-bar defence and was struck out as an abuse of process

Reasoning

The parties, subject matter and reliefs in the Petition and Cause No. 49 of 2013 were identical. Following principles from Patrick Ochieno Abachi on concurrent jurisdiction and avoiding duplication, the court held that judicial economy and avoiding conflicting decisions required the Petition to be struck out, the Employment Act and Labour Relations Act being the primary legislation giving effect to Article 41.

p. 3
02

Limitation under section 90 of the Employment Act

Holding

The claim filed on 15 March 2013, over three years after the 24 August 2009 dismissal, was time barred

Reasoning

Section 90 regulates limitation in employment contracts to three years from dismissal. Section 4(1) of the Limitation of Actions Act was inapplicable, so the Claimant could not argue a six-year limitation period. The Cause should have been filed by 24 August 2012.

p. 3
03

Jurisdiction to extend time

Holding

The Industrial Court has no jurisdiction to extend time for claims out of employment contracts once time has lapsed

Reasoning

Section 90 of the Employment Act, which amended section 4(1) of the Limitation of Actions Act, provides a three-year limitation but has no provision for extension. Applying the Court of Appeal's reasoning in Divecon v Samani on section 4(1), similar principles apply to section 90; the court has no power to entertain out-of-time claims or extend time.

p. 4

Legal principles established

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  • A litigant may not circumvent the Employment Act by directly invoking Article 41 of the Constitution for unfair termination claims
  • No employee may bring a claim founded on a contract of service after three years, and the Industrial Court has no power to extend time

Court orders

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  1. 1.The preliminary objection succeeds
  2. 2.The Petition is struck out for being an abuse of the court's process
  3. 3.Cause No. 49 of 2013 is struck out as it was filed out of time
  4. 4.The motion to extend time is dismissed
  5. 5.The Respondent is awarded costs of the Petition and the Cause

Authorities

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Legislation

  • Employment Actsections 44(4)(e), 90
  • Constitution of KenyaArticles 41, 50, 159(2), 159(d)
  • Limitation of Actions Actsection 4(1)
  • Civil Procedure Rulessections 1, 1A, 1B, 3, 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Legal Notice No. 117 of 28 June 2013
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 (Gicheru Rules)rule 23
  • Labour Relations Act

Cases cited (6)

  • Domnic Arony Amolo v The Attorney General
    Nairobi High Court Misc Application No. 494 of 2003
  • Wachira Weheire v The Attorney General
    Nairobi Misc Civil Case No. 1184 of 2003
  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    (2013) eKLR
  • Abdul Aziz Juma v Nikisuhi Investments & 2 others
    (2013) eKLR
  • Patrick Ochieno Abachi v Kenya Anti Corruption Commission
    (2010) eKLR
  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; Article 41 of the Constitution invoked by the Petitioner

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Josephat Ndirangu v Henkel Chemicals (EA) Ltd [2013] KEELRC 890 (KLR)", Case Analysis (2013). Petition No. 1 of 2013 (consolidated with Cause No. 49 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/890/eng@2013-11-20

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