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ELRCOtherNot stated in the judgment· [2014] KEELRC 141 (KLR)

Telcom Kenya Limited v Joyce Chesang Kitur [2014] KEELRC 141 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
7 November 2014
DMD.K. Njagi Marete
1,053 words in judgment
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The bottom line

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A Kenyan employment court ruled that the three-year deadline for suing an employer is a hard legal rule, but gave a late-filing worker a second chance to apply for permission to sue.

What this practically means

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Executive summary

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The Respondent, Telkom Kenya Limited, raised a preliminary objection dated 7th April 2014 seeking striking out or dismissal of the Claimant's memorandum of claim on the ground that it was filed out of time. The Claimant, Joyce Chesang Kitur, was employed in 1993 as a Sales Clerk; her contract was terminated in October 2009 allegedly for failure of sales in the shop to meet target. The memorandum of claim was filed on 5th February 2014, more than three years later. The Respondent relied on Section 90 of the Employment Act, 2007, which requires suits arising from contracts of service to be commenced within three years, and contended that the court lacked jurisdiction. The Claimant opposed, invoking Article 159(2)(d) of the Constitution on procedural technicalities, arguing that the lapse was a curable defect and that upholding the objection would occasion injustice. The court heard the parties by written submissions. It held that limitation on grounds of time bar is not a mere technicality but a substantive matter of law requiring compliance. Nevertheless, finding a potential injustice in upholding the objection, and noting that the Claimant should initially have sought leave to file the suit out of time, the court declined to determine the objection on its merit. It awarded the Claimant leave to file an application for leave to file the cause out of time, to be determined on merit. Judgment was delivered on 7th November 2014 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Nature of limitation under Section 90 of the Employment Act

Holding

A time-bar under Section 90 is substantive law, not a curable procedural technicality

Reasoning

The court considered the claimant's argument that the limitation defect was a technicality curable under Article 159(2)(d). It held that limitation goes to substance and jurisdiction, requiring compliance; non-compliance jeopardises the defaulting party's position. Despite this, the court exercised discretion in the circumstances to permit the claimant to apply for leave to file out of time rather than uphold the objection outright.

p. 2
02

Whether the preliminary objection should be upheld

Holding

The court declined to determine the objection on its merit and instead granted leave to apply for extension of time

Reasoning

Though the suit was filed more than three years after the 27th October 2009 termination, the court balanced the substantive bar against potential injustice to the claimant. It noted the claimant should initially have sought leave to file out of time and treated the omission as counsel's oversight, directing that course instead of striking out the suit.

p. 2

Legal principles established

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  • Limitation of actions on grounds of time bar is a substantive matter of law, not a procedural technicality curable under Article 159(2)(d)

Court orders

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  1. 1.The court declined to determine the preliminary objection on its actual merit
  2. 2.Leave awarded to the Claimant to file an application for leave to file the cause out of time, to be determined on merit

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
Jurisdiction invoked
Employment Act, 2007 and Article 159(2)(d) of the Constitution of Kenya

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, "Telcom Kenya Limited v Joyce Chesang Kitur [2014] KEELRC 141 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/141/eng@2014-11-07

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