David Ondari Mogaka v African Banking Corporation Limited [2014] KEELRC 1006 (KLR)
The bottom line
#A Kenyan employment claim filed three years after dismissal was time-barred, and the worker's explanation for the delay was too vague to win an extension.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant established a good reason for the delay in filing the memorandum of claim
No. The only document allegedly belatedly obtained was the termination letter dated 28.01.2011, which the claimant endorsed as received on 29.01.2011; he never stated the date he received it and produced no evidence of efforts to obtain documents from the respondent
The court examined the claimant's explanation that he delayed because he had not obtained necessary documents from the respondent. Only the termination letter was exhibited, and it bore the claimant's own endorsement dated 29.01.2011, suggesting receipt at that time. The claimant did not state when he received the letter, nor show any effort to request documents from the respondent that the respondent failed to honour. The explanation therefore lacked evidential support and merit.
Whether the court has power to enlarge the 3-year limitation period under section 90 of the Employment Act, 2007
Yes, via section 31 of the Limitation of Actions Act Cap. 22, which extends the principles of enlargement of time to limitation periods in other written laws; but on the facts no ground for enlargement was established
The court noted the claimant had not cited any constitutional or statutory power to extend the 3-year period in section 90 of the Employment Act. However, the court itself identified section 31 of the Limitation of Actions Act as empowering extension of time prescribed in other written laws. Notwithstanding that jurisdiction existed, the applicant failed to establish any ground for enlargement under the relevant provisions, so the discretion was not exercised in his favour.
Legal principles established
#- Under section 31 of the Limitation of Actions Act (Cap. 22), the principles of enlargement of time apply to limitation periods prescribed in other written laws, including the 3-year period in section 90 of the Employment Act, 2007
- An applicant for enlargement of time must establish a good reason for the delay, supported by evidence; a bare assertion of awaiting documents from the respondent without proof of efforts to obtain them is insufficient
Court orders
#- 1.The claimant's notice of motion filed on 4.03.2014 is dismissed with costs
- Jurisdiction invoked
- Rule 27(1)(g) of the Industrial Court Rules 2010, Order 50 rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010, and sections 1A, 3A, 3B and 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ondari Mogaka v African Banking Corporation Limited [2014] KEELRC 1006 (KLR)", Case Analysis (2014). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1006/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.