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ELRCStruck OutNot stated in the judgment· [2015] KEELRC 79 (KLR)

Joseph Chege Kamau v Jamii Bora bank Limited [2015] KEELRC 79 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2015
LNLinnet Ndolo
1,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi by Linnet Ndolo J determined a preliminary objection dated 24th September 2015 in which the Respondent contended that the Court lacked jurisdiction to entertain the Claimant's claim, that the suit was time barred and an abuse of process, and that the Court could not extend time for filing. The claim concerned termination of employment on 16th October 2008, with the claim filed some eight years later. The Claimant opposed the objection, relying on an ex parte order granted by Wasilwa J on 23rd April 2015 extending time and deeming the plaint duly filed, and argued that a court of concurrent jurisdiction could not overrule that decision; he also invoked Article 159 of the Constitution on procedural technicalities. The Judge held that because the extension order was granted ex parte without hearing the Respondent, the Respondent could not be barred from contesting it and res judicata did not apply. On the merits, applying Section 90 of the Employment Act, 2007, and following Radido J in Peter Nyamai & 7 Others v M.J Clarke Limited [2013], the Court held that it has no jurisdiction to extend time for employment claims, that limitation is substantive and touches jurisdiction, and that the suit ought to have been filed by 17th October 2011. The preliminary objection was upheld, the claim was struck out, and no orders for costs were made.

Key legal issues

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01

Whether the preliminary objection could be entertained despite the ex parte extension order of Wasilwa J

Holding

Yes - the Respondent, not having been heard when the ex parte order was made, could not be barred from contesting it; res judicata did not apply

Reasoning

The order of 23rd April 2015 was granted ex parte after hearing only the Claimant. The Judge noted no formal ruling existed and the ratio was unknown. Since a party aggrieved by ex parte orders retains the right to contest them, res judicata could not defeat that right, so the Court proceeded to consider the preliminary objection on its merit.

p. 2
02

Whether the claim is statute barred under Section 90 of the Employment Act

Holding

Yes - the cause of action accrued on 16th October 2008 and the suit should have been filed by 17th October 2011; the claim filed some eight years later is out of time and the Court cannot extend time

Reasoning

Section 90 of the Employment Act, 2007 requires civil actions arising from the Act or a contract of service to be commenced within three years. The Court, following Radido J in Peter Nyamai & 7 Others v M.J Clarke Limited, held it lacks jurisdiction to extend time for such claims. Limitation being substantive, it goes to jurisdiction, and the claim was struck out.

p. 3

Legal principles established

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  • This Court has no jurisdiction to extend time for claims arising out of employment contracts governed by the Employment Act, 2007
  • Limitation of actions is substantive and goes to jurisdiction, not merely procedural
  • A party aggrieved by ex parte orders is not barred by res judicata from contesting them

Court orders

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  1. 1.The Respondent's preliminary objection dated 24th September 2015 is upheld
  2. 2.The Claimant's claim is struck out
  3. 3.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenya, 2010Article 159

Cases cited (1)

  • Peter Nyamai & 7 Others v M.J Clarke Limited
    [2013]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; limitation governed by Section 90 of the Employment Act, 2007

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, "Joseph Chege Kamau v Jamii Bora bank Limited [2015] KEELRC 79 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/79/eng@2015-12-18

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