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ELRCDismissedNot stated in the judgment as supplied· [2014] KEELRC 1006 (KLR)

David Ondari Mogaka v African Banking Corporation Limited [2014] KEELRC 1006 (KLR)

Industrial Court of Kenya
23 May 2014
822 words in judgment
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The bottom line

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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

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Executive summary

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The claimant, David Ondari Mogaka, moved the Industrial Court at Nakuru by notice of motion dated 4.03.2014 under 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, seeking enlargement of time to file a memorandum of claim, deeming of the draft claim as filed and served, and costs in the cause. He averred that his employment with the respondent ran from 7.07.2008 until termination on 29.01.2011 without explanation or a fair hearing; the 3-year limitation period under section 90 of the Employment Act, 2007 had expired, and the delay of about two months was attributable to his late receipt of the termination letter dated 28.01.2011 and other documents. The respondent opposed, noting the claimant endorsed receipt of the termination letter on 29.01.2011, that no efforts to obtain documents were evidenced, and that the claimant faced a pending criminal charge of stealing by servant in Nakuru Criminal Case 702 of 2011. The court framed two issues: whether a good reason for delay was established, and whether it had power to enlarge time under section 90. It found no good reason, lacking evidence of efforts to obtain documents, and while it held that section 31 of the Limitation of Actions Act empowers extension of statutory limitation periods, no ground for enlargement was established. The application was dismissed with costs on 23rd May 2014.

Key legal issues

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01

Whether the claimant established a good reason for the delay in filing the memorandum of claim

Holding

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

Reasoning

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.

p. 2
02

Whether the court has power to enlarge the 3-year limitation period under section 90 of the Employment Act, 2007

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The claimant's notice of motion filed on 4.03.2014 is dismissed with costs

Authorities

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Legislation

  • Industrial Court Rules 2010Rule 27(1)(g)
  • Civil Procedure Rules 2010Order 50 rule 6
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Actsections 1A, 3A, 3B, 95
  • Employment Act, 2007section 90
  • Limitation of Actions Actsection 31 (Cap. 22)
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

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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, "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.