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ELRCDismissedNot stated in judgment· [2014] KEELRC 1189 (KLR)

Josehat M. M’rwigi v Kenya Ports Authority [2014] KEELRC 1189 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 July 2014
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that a time-extended lawsuit can't be thrown out early on limitation grounds; that challenge must wait for the full trial.

What this practically means

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Executive summary

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The Claimant filed suit on 9 May 2013 before the Resident Magistrate's Court at Mombasa seeking a declaration that his termination of employment (which occurred on 31 October 1994) was unprocedural and unlawful, plus damages. By consent the suit was transferred to the Industrial Court. The Claimant then amended his claim to seek Kshs 2,864,783. The Respondent filed a preliminary objection contending that the Court had no jurisdiction or discretion to extend time or permit a suit on breach of employment contract outside the limitation periods - section 90 of the Employment Act as pleaded, and, in submissions, section 4(1) of the Limitation of Actions Act, which prescribes six years for contract claims. The Respondent argued the suit, filed in 2013 for a 1994 termination, was hopelessly out of time, relying on Kasiwa, Milisi and Divecon. The Claimant countered that no extension application was before the Court, that the suit followed leave granted by the High Court in Mombasa HCCC No. 68 of 2012 (OS), and that the validity of such leave could only be challenged at trial. The Court held that section 90 of the Employment Act, 2007 did not apply since the 1994 termination was governed by the common law and the repealed Employment Act, cap 226, which contained no limitation period; the Limitation of Actions Act therefore applied and the Claimant was indeed out of time. However, following Yunes Oruta v Samuel Nyamato and Divecon, and as recently upheld in Tana and Athi Rivers Development Authority v Joseph Mbindyo, where leave to sue out of time has been granted, limitation is a matter for the trial judge, not a preliminary point. The preliminary objection was declined with no order as to costs.

Key legal issues

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01

Applicability of section 90 of the Employment Act, 2007 to the suit

Holding

Section 90 of the Employment Act, 2007 was not applicable because the employment relationship at the material time (termination in 1994) was governed by the common law and the repealed Employment Act, cap 226, which contained no limitation period

Reasoning

The notice of preliminary objection was premised on section 90 of the Employment Act, 2007. However, the Claimant was terminated in 1994, before that Act came into force. At the material time the relationship was governed by the common law and the repealed Employment Act, cap 226, which contained no limitation provision. Because of that lacuna, the Limitation of Actions Act became implicated, prescribing six years for contract claims.

p. 2
02

Whether limitation may be raised as a preliminary objection where leave to file suit out of time has been granted

Holding

No - where leave has been granted, the proper forum to challenge it is within the suit at the main trial, not by preliminary objection

Reasoning

Relying on Yunes Oruta v Samuel Nyamato, Divecon v Samani and Tana and Athi Rivers Development Authority v Joseph Mbindyo, the Court held that where leave to file an action out of time has been granted exparte, the issue of limitation is for the trial judge as one of the trial issues. The Claimant invoked leave granted by the High Court in Mombasa HCCC No. 68 of 2012 (OS), so the objection was premature.

p. 2
03

Whether the Claimant was out of time under section 4(1) of the Limitation of Actions Act

Holding

Yes - the cause of action arose on termination in 1994 and the suit ought to have been filed by 30 October 2000; it was filed in 2013, outside the six-year period

Reasoning

Section 4(1) of the Limitation of Actions Act prescribes six years for causes of action founded in contract. The Claimant was terminated in October 1994 and filed suit on 9 May 2013, well beyond the prescribed period. The Court found him clearly out of time, but this finding did not dispose of the suit because leave had been granted and the validity of the leave was to be canvassed at trial.

p. 2
04

Incongruity between the preliminary objection as filed and the submissions

Holding

The Court noted an incongruity: the objection was filed on the basis of section 90 of the Employment Act, 2007, but submissions were made on the Limitation of Actions Act and the repealed Employment Act, cap 226

Reasoning

The Court observed that the notice of preliminary objection was premised on section 90 of the Employment Act, 2007, while counsel's submissions invoked the Limitation of Actions Act and the repealed Employment Act, cap 226. This mismatch was noted in evaluating the objection and contributed to its being declined as framed.

p. 2

Legal principles established

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  • Where leave to file an action out of time has been granted, the issue of limitation and the validity of the leave should be determined at the trial, not as a preliminary point
  • An application for transfer of a suit from a subordinate court to a superior court ought to be made to the superior court, not the subordinate court

Court orders

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  1. 1.The preliminary objection is declined
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)
  • Employment Act, cap 226 (repealed)Not specified
  • Constitution of Kenya, 2010Articles 48 and 50

Cases cited (5)

  • Mary Kasiwa v Scorpio Enterprises Ltd
    (2013) eKLR
  • Michael Milisi v Kenya Ports Authority
    (2013) eKLR
  • Divecon v Samani
    (1995-1998) 1 EA (CAK) 48
  • Yunes Oruta & another v Samuel Nyamato
    Civil Appeal No. 96 of 1984
  • Tana and Athi Rivers Development Authority v Joseph Mbindyo & 3 others
    [2013] eKLR
Jurisdiction invoked
Jurisdiction of the Industrial Court over a suit transferred by consent from the Resident Magistrate's Court; the preliminary objection was premised on section 90 of the Employment Act and section 4(1) of the Limitation of Actions 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, "Josehat M. M’rwigi v Kenya Ports Authority [2014] KEELRC 1189 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1189/eng@2014-07-18

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