Agnes M. Osiemo & 75 others v National Bank of Kenya & another [2014] KEELRC 527 (KLR)
The bottom line
#Kenya's Industrial Court dismissed 76 ex-employees' bid to sue for unpaid benefits because their claim was filed more than six years too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended suit is time-barred under the Limitation of Actions Act
Yes; the claim founded on contract is barred by Section 4(1) of the Limitation of Actions Act, limiting suits on contract to six years from the date the cause of action arose
The Court held that pre-Employment Act 2007 contract-based labour claims fall under the Limitation of Actions Act, Cap 22. Section 4(1) imposes a six-year limitation in mandatory terms. The alleged cause of action arose around 2006, and no material before the Court justified enlargement of time, so the intended suit was hopelessly out of time.
Whether the negligence of the Applicants' former Advocate excuses the delay
No; the parties' recourse lies against the Advocate personally, and the Court has no discretion to enlarge time for filing the suit
The Applicants blamed their former Advocate for misleading them to litigate before a court without jurisdiction and for failing to prosecute an appeal even after condonation by the Court of Appeal. The Court held that while the parties have recourse against the Advocate personally, this negligence does not confer on the Court a discretion to enlarge time for filing a statute-barred suit.
Whether the Court had material to determine jurisdiction over the intended suit
No; the Respondents were not the Applicants' employers and no draft statement of claim or material establishing the cause of action was placed before the Court
The Applicants did not annex a draft statement of claim to enable the Court assess the viability of the intended suit. The 1st and 2nd Respondents were not the employers, and the circumstances of the alleged cause of action of 2006 were not canvassed in the grounds or the Supporting Affidavit, leaving the Court to guess what occurred.
Legal principles established
#- Labour claims founded on contract before the enactment of the Employment Act, 2007 are governed by the limitation period in Section 4(1) of the Limitation of Actions Act, which bars suits founded on contract brought after six years from the date the cause of action arose
- Under Section 28(2) of the Limitation of Actions Act, where an ex-parte application for extension of time is made before commencement of an action, leave is only granted where a cause of action has been established and the requirements of Sections 27(2) and 29 are fulfilled
Court orders
#- 1.The ex-parte application dated 15th January 2014 is dismissed
- Jurisdiction invoked
- Industrial Court jurisdiction over labour disputes; application for extension of time to file suit out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes M. Osiemo & 75 others v National Bank of Kenya & another [2014] KEELRC 527 (KLR)", Case Analysis (2014). Miscellaneous Application No. 20 of 2014 (formerly H.C. Misc. Application No. 1612 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/527/eng@2014-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.