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ELRCAllowedMisc Application No 9 of 2014· [2014] KEELRC 664 (KLR)

Susan Nyanchama Ombati v Standard Chartered Bank Ltd [2014] KEELRC 664 (KLR)

Industrial Court of Kenya
10 February 2014
818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, formerly employed by the Respondent Bank from September 1995 until the termination of her contract on 11th January 2010, sought leave to file a Statement of Claim at the Industrial Court outside the three-year limitation period in Section 90 of the Employment Act 2007. She had filed suit in the High Court in May 2010, within four months of termination, claiming Kshs.4,116,765 in damages, but the Respondent applied to strike out the suit in November 2013 on the ground that the Industrial Court had exclusive jurisdiction over employment disputes. The Applicant then withdrew the High Court suit in December 2013. Judge James Rika held that the Applicant's error resulted from a misapprehension of rapidly changing jurisdictional law and should not defeat her right to substantive justice. He noted that employment disputes were routinely transferred from the High Court to the Industrial Court, that Section 12 of the Industrial Court Act empowered the Court to grant appropriate relief, and that Section 90 was intended to bar dilatory claimants rather than those who had acted diligently, even if in a wrong forum. The Court ordered that time be deemed to have stopped running between the filing and withdrawal of the High Court suit, and granted the Applicant two years and eight months from the date of withdrawal to file and serve her Statement of Claim.

Key legal issues

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01

Whether the Industrial Court can relieve a litigant from the expiry of the Section 90 limitation period where suit was filed within time but in a court without jurisdiction

Holding

Yes - the Court deemed time to have stopped running between the filing and withdrawal of the High Court suit, treating the error as an innocent misapprehension of jurisdiction that should not defeat substantive justice.

Reasoning

The Applicant filed suit within four months of termination, at the wrong forum due to her Advocate's misapprehension of rapidly changing jurisdictional law. The Industrial Court has routinely received employment disputes transferred from the High Court, so the suit could equally have been transferred. The Respondent only raised the jurisdiction objection after three years had lapsed. Section 12 of the Industrial Court Act empowers the Court to grant any appropriate relief despite the absence of an Originating Summons provision in the Rules.

p. 2

Legal principles established

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  • Limitation under Section 90 is aimed at barring dilatory claimants, not those who institute proceedings in a court lacking jurisdiction
  • Proceedings filed in a court without jurisdiction, though in error, constitute action sufficient to interrupt the running of limitation time

Court orders

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  1. 1.The time between the date the High Court Suit was filed and withdrawn by the Applicant shall, for the purpose of the intended Claim at the Industrial Court, be deemed to have stopped running
  2. 2.The Applicant may file and serve her Statement of Claim within 2 years and 8 months from the date she withdrew her Suit at the High Court

Authorities

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Legislation

  • Employment ActSection 90
  • Industrial Court ActSection 12
  • Industrial Court (Procedure) Rules2010
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011

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, "Susan Nyanchama Ombati v Standard Chartered Bank Ltd [2014] KEELRC 664 (KLR)", Case Analysis (2014). Misc Application No 9 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/664/eng@2014-02-18

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