Barrack Musumba Oluoch v Nyanza Sugar And Produce Ltd [2014] KEELRC 767 (KLR)
The bottom line
#Once a Kenyan employment court has allowed a late claim, employers cannot use the same delay argument to try to have the case thrown out.
What this practically means
#Executive summary
#Key legal issues
#Statutory limitation under Section 90 of the Employment Act
The Preliminary Objection failed because leave to file the claim out of time had already been granted under Sections 4 and 28 of the Limitation of Actions Act (Cap 22).
The respondents argued that the claim filed on 8.11.2013 was four years after the termination of 31.10.2009 and that under Section 90 of the Employment Act the Industrial Court could not extend time. The claimant countered that leave to file out of time had been granted on 26.9.2013. The court found that such leave was indeed sought and granted in consideration of Sections 4 and 28 of Cap 22, and having done so it could not revisit the same issue.
Functus officio / revisiting own orders
A court cannot entertain a preliminary objection on a matter it has already determined by granting extension of time, as this would amount to sitting on appeal against its own orders.
The court reasoned that once it had exercised its discretion to extend time under the Limitation of Actions Act, the issue of limitation was settled as far as that suit was concerned. Reopening the same question through a preliminary objection would effectively be the court reviewing its own decision, which the law does not permit. For that reason alone the objection lacked merit.
Legal principles established
#- A court that has granted leave to file a suit out of time cannot entertain a preliminary objection on limitation on the same issue, as that would amount to sitting on appeal against its own orders.
Court orders
#- 1.The Preliminary Objection is dismissed
- 2.The hearing of the case to proceed on merit
- Jurisdiction invoked
- Employment Act, Section 90; Limitation of Actions Act (Cap 22), Sections 4 and 28
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barrack Musumba Oluoch v Nyanza Sugar And Produce Ltd [2014] KEELRC 767 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/767/eng@2014-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.