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ELRCAllowedOriginating Summons dated 6th February 2013· [2014] KEELRC 1105 (KLR)

Maritinah Mwekonyo Musyoki v Alpha Fine Foods Limited [2014] KEELRC 1105 (KLR)

Industrial Court (Employment and Labour Relations Court)
16 June 2014
MOMAUREEN ONYANGO
361 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an injured worker to sue years late because serious injury paused the legal deadline until she recovered.

What this practically means

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Executive summary

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By an originating summons dated 6th February 2013 and filed on 12th February 2013, the applicant, an unrepresented former employee, sought leave to file her claim out of time and an order that her Memorandum of Claim be deemed duly filed upon payment of requisite court fees. She averred that her employment was unfairly and wrongfully terminated on 29th May 2005; that she suffered a serious injury at work on 29th November 2005 and was unwell as a result, with the cause of action lapsing in May 2011; that she completed treatment in August 2012; and that the present application followed the Respondent's refusal to pay her terminal dues. The application proceeded ex parte on 12th June 2014 after the Respondent, though served with hearing notice eight times, failed to respond or attend. The court applied Section 22 of the Limitation of Actions Act, under which limitation does not run against a person under disability until the disability ceases. Satisfied from the medical records and reports that the applicant was under disability from her workplace injury and that the disability ceased in August 2012, the court held that the cause of action commenced in August 2012. It granted leave to file the claim out of time and deemed the Memorandum of Claim properly on record upon payment of the requisite court fees. Judgment dated and delivered at Nairobi on 16th June 2014.

Key legal issues

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01

Whether the applicant was under disability suspending the limitation period

Holding

The court was satisfied that the applicant was under disability following serious injuries suffered at work on 29th November 2005, and that the disability ceased in August 2012, so the cause of action commenced in August 2012.

Reasoning

The court relied on Section 22 of the Limitation of Actions Act, which provides that limitation does not run against a person under disability until the disability ceases. Medical treatment records and medical reports attached to the applicant's affidavit, together with her oral submissions, confirmed that she suffered serious injury at work on 29th November 2005. She finished treatment in August 2012, so time only began to run then, and the application filed on 12th February 2013 was within time.

p. 2

Legal principles established

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  • Under Section 22 of the Limitation of Actions Act, the limitation period in respect of a person under disability does not start running until the disability ceases.

Court orders

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  1. 1.Leave granted to the applicant to file her claim out of time
  2. 2.The Memorandum of Claim filed with the originating summons deemed to be properly on record upon payment of the requisite court fees by the applicant

Authorities

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Legislation

  • Limitation of Actions ActSection 22
Jurisdiction invoked
Section 22 of the Limitation of Actions Act (person under disability)

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, "Maritinah Mwekonyo Musyoki v Alpha Fine Foods Limited [2014] KEELRC 1105 (KLR)", Case Analysis (2014). Originating Summons dated 6th February 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1105/eng@2014-06-16

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