Kenya Airways Limited v Donald Osewe Oluoch [2014] KEELRC 370 (KLR)

The cause of action arose on 25th June 2007 upon the Respondent's resignation in breach of a training sponsorship bond. The Employment Act 2007 only commenced in August 2008, so its three-year limitation period in Section 90 cannot apply retroactively. The applicable law is therefore the Limitation of Actions Act, whose six-year period for contract claims had arguably expired by the time of filing in August 2013.

The Respondent argued the Claimant was estopped from filing in the Industrial Court because it had earlier resisted transfer of the High Court suit to the Industrial Court, which was later dismissed for want of jurisdiction. The court held that jurisdiction goes to the root and cannot be conferred by conduct or waiver; a court must examine jurisdiction even suo moto and must strike out a suit where it lacks jurisdiction.

Applying the principle in K.J. Tomji's treatise on limitation, the court held that time during which a plaintiff diligently and in good faith prosecutes another civil proceeding against the same defendant on the same cause of action, in a court unable to entertain it for defect of jurisdiction, is excluded. Although the claim was filed more than six years after the cause of action, the period the matter was pending at the High Court and Court of Appeal did not run. The suit was thus filed within time.