Patrick Kanga Luseka v Bedrock Holdings Ltd [2015] KEELRC 319 (KLR)

Industrial Court of Kenya

4 November 2015

MOMaureen Onyango

646 words in judgment

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The bottom line

What this practically means

Executive summary

The Claimant, Patrick Kanga Luseka, sued Bedrock Holdings Ltd. in the Industrial Court at Kisumu, claiming he was employed on 28th November 2005 as a casual senior security guard, confirmed on 1st July 2006, and forced to retire on medical grounds by a doctor's recommendation of 7th December 2009. He gave notice of retirement by letter dated 1st April 2010, but the Respondent turned down his application. After a failed conciliation before the Labour Officer, who issued a certificate of disagreement, he claimed underpayment, overtime, N.S.S.F. contributions, gratuity, house allowance, leave allowance and leave transport for five years, totalling Kshs.476,026/=. The Respondent denied terminating his employment or owing the sums claimed; its witness testified that the Claimant worked on and off until February 2010, when he stopped reporting and was declared a deserter. The court did not reach the merits. On the Respondent's submissions, it held that under Section 90 of the Employment Act claims must be filed within three years of accrual of the cause of action. Since the Claimant allegedly left employment at the end of May 2010, he ought to have filed by the end of May 2013, yet filed on 11th September 2013 without leave to file out of time. Relying on Divecon v Samani and Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited, the court held that limitation ousts jurisdiction. The claim was accordingly struck out with no orders for costs.

Key legal issues

Whether the claim was time barred under Section 90 of the Employment Act

Holding

The claim filed on 11th September 2013 was time barred because the cause of action accrued at the end of May 2010 and no leave to file out of time was sought

Reasoning

The court found from the pleadings and evidence that the claimant left employment at the end of May 2010. Under Section 90 of the Employment Act the 3-year limitation period therefore expired at the end of May 2013. The claim was filed on 11th September 2013 without leave to file out of time, so it could not be entertained.

p. 2

Whether limitation ousts the court's jurisdiction

Holding

Once a claim is time barred the court has no jurisdiction and must not take any further step in the matter

Reasoning

Relying on Divecon v Samani and Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited, the court held that no court may entertain a time-barred action, that jurisdiction is everything, and that a court finding no jurisdiction must stop; limitation thereby removes jurisdiction over the claim.

p. 2

Legal principles established

Claims arising under the Employment Act must be filed within 3 years of accrual of the cause of action, and a claim filed out of time without leave robs the court of jurisdiction
Limitation has the effect of taking away the jurisdiction of the court to hear time-barred matters

Court orders

1.The claim is struck out
2.No orders for costs

Authorities

Legislation

Employment ActSection 90

Cases cited (2)

Divecon v Samani
[1995-1998] EA 48
Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
[1998] KLR 1

Jurisdiction invoked: Section 90 of the Employment Act (limitation of claims arising under the Employment Act)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Patrick Kanga Luseka v Bedrock Holdings Ltd [2015] KEELRC 319 (KLR)", Case Analysis (2015). Cause No. 238 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/319/eng@2015-11-04

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