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ELRCDismissedNot stated in the judgment· [2015] KEELRC 168 (KLR)

Paul Chiuri Muriuki v Kenyatta National Hospital [2015] KEELRC 168 (KLR)

Employment and Labour Relations Court of Kenya
30 November 2015
872 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a wrongful dismissal suit filed over three years late, confirming that the three-year time limit under section 90 of the Employment Act is strict.

What this practically means

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Executive summary

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This is a first-instance ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) on a notice of preliminary objection filed by the Respondent on 27th January 2015. The Respondent objected that the Claimant's suit, filed on 18th November 2014, was statute barred under section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act, the claim arising from a termination said to have occurred on 19th July 2011, and that no leave to file out of time had been sought. The Claimant, who alleged unlawful suspension and summary dismissal after employment from 6th December 1999, argued that Articles 2(4), 47(1) and 159(2) of the Constitution should prevail over the limitation provision, and that the delay was caused by the professional misconduct of his former advocate, reliance being placed on Elizabeth Washeke v Airtel. The court held that section 90 imposes a mandatory three-year limitation period which, following Peter Nyamai v M J Clarke Limited, is a statutory requirement and not a procedural matter curable by Articles 47 and 159. Complaints of unfair termination should have been filed on or before 20th July 2014. A claimant with good reasons for delay should first have sought the court's direction before filing out of time. The objection succeeded and the suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the suit is time barred under section 90 of the Employment Act

Holding

Yes. The cause of action arose on 19th July 2011 when the Claimant was summarily dismissed, and complaints of unfair termination should have been filed on or before 20th July 2014; the suit filed on 18th November 2014 is out of time and not sustainable.

Reasoning

Section 90 of the Employment Act imposes a three-year limitation period for employment claims. The court followed Peter Nyamai v M J Clarke Limited in holding this a statutory requirement rather than a procedural issue. The Claimant admitted suspension without cause and summary dismissal on 19th July 2011, so the claim filed in November 2014 was way out of time and the court's jurisdiction was ousted by the mandatory statutory provision.

p. 2
02

Whether Articles 47 and 159 of the Constitution could cure the time lapse

Holding

No. Articles 47 (fair administrative action) and 159 (judicial style) were not intended to cure a time lapse, and invoking them after knowingly filing out of time is a misapplication of the Constitution.

Reasoning

The court held that where a claimant has good reasons for delay, the proper course was to first move the court for appropriate direction or leave before filing. Filing out of time and then invoking constitutional provisions to overcome the statutory bar is a misapplication of those articles. The limitation is a matter regulated by law, not a procedural technicality, and cannot be cured by Article 159(2) or the advocate's negligence.

p. 2
03

Whether the alleged professional misconduct of the Claimant's advocate excused the delay

Holding

No. The court did not accept this as a basis to save the claim, holding that the Claimant should have first sought the court's direction on the time lapse instead of filing the suit and then invoking the Constitution.

Reasoning

The Claimant blamed his former advocate, Oundu Nelson Hezron, whose conduct was reported to the Law Society of Kenya, and argued that a mistake of counsel should not be visited on the client under Article 159(2). The court did not rule on the advocate's conduct as such, but held that a claimant with good reasons for the delay ought to have moved the court first for leave before filing the out-of-time suit.

p. 2

Legal principles established

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  • The three-year limitation period in section 90 of the Employment Act is a statutory requirement, not a procedural matter, and ousts the court's jurisdiction over claims filed out of time
  • A party who files a suit knowing the claim is out of time cannot invoke Articles 47 and 159 of the Constitution to cure the lapse; leave should first have been sought from the Court
  • An employee aggrieved by summary dismissal has up to three years to challenge it before the Employment and Labour Relations Court under section 90 of the Employment Act

Court orders

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  1. 1.The objections by the Respondent succeed
  2. 2.The suit is dismissed
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 43
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 47
  • Limitation of Actions Actsection 4(1)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (2)

  • Peter Nyamai & Others versus M J Clarke Limited
    [2013] eKLR
  • Elizabeth Washeke & 62 Others versus Airtel (K) Ltd & Another
    Cause No. 1972 of 2012
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007; objections founded 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, "Paul Chiuri Muriuki v Kenyatta National Hospital [2015] KEELRC 168 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/168/eng@2015-11-30

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