Josehat M. M’rwigi v Kenya Ports Authority [2014] KEELRC 1189 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Applicability of section 90 of the Employment Act, 2007 to the suit
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because the employment relationship at the material time (termination in 1994) was governed by the common law and the repealed Employment Act, cap 226, which contained no limitation period
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 At the material time the relationship was governed by the common law and the repealed Employment Act, cap 226, which contained no limitation provision.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.
Whether limitation may be raised as a preliminary objection where leave to file suit out of time has been granted
No - where leave has been granted, the proper forum to challenge it is within the suit at the main trial, not by preliminary objection
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.
Whether the Claimant was out of time under section 4(1) of the Limitation of Actions Act
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
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.
Incongruity between the preliminary objection as filed and the submissions
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection is declined
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.