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ELRCDismissedNot stated in the judgment as provided· [2015] KEELRC 452 (KLR)

Magethe Joseph Kiarie v Eco Bank Kenya Limited [2015] KEELRC 452 (KLR)

Employment and Labour Relations Court (Industrial Court)
12 August 2015
1,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can extend filing deadlines in exceptional cases, but dismissed a sick former cashier's late claim because he couldn't explain the whole delay.

What this practically means

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Executive summary

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The Applicant, a former Cashier employed by the Respondent from 10 June 1991 until his suspension on 10 March 2010 and termination on 24 March 2010, filed a Notice of Motion on 8 August 2014 under section 12 of the Industrial Court Act (Employment and Labour Relations Act) seeking leave to file suit out of time. He attributed the delay to illness, including chronic appendicitis, pulmonary tuberculosis and bronchospasm, with hospital admission until September 2011. The Respondent opposed, contending that under section 90 of the Employment Act the three-year limitation period is mandatory and the Court has no jurisdiction or discretion to extend time, relying on Owners of Motor Vessel 'Lilian S' and Peter Nyamai & 7 Others v M J Clarke Limited. The Court held that section 12(3)(viii) of the ELR Act confers a constitutional and statutory discretion to grant any other appropriate relief, and respectfully departed from Peter Nyamai to the extent that decision treated the discretion as unfettered by such residual power. However, on the facts the discretion was not attracted: the Applicant gave no account of the period from his discharge in September 2011 to March 2013 when limitation lapsed, and the medical reports annexed related to a 2011 assessment. The inherent power under section 12(3)(viii) is to be used sparingly and only in exceptional cases. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Court has discretion to extend time despite section 90 of the Employment Act

Holding

Yes - section 12(3)(viii) grants inherent and residual discretion to grant any other appropriate relief, and the Court respectfully departed from Peter Nyamai & 7 Others v M J Clarke Limited to that extent

Reasoning

The Court held that section 12(3)(viii) ELRCA gives an all-important rider allowing any other appropriate relief, a mandate both constitutional (Article 162) and statutory. Parliament could have restricted that mandate but did not. Though section 90 Employment Act is mandatory, the Court's powers under section 12 ELRCA remain, so the discretion exists where good reason justifies it, though to be used sparingly in exceptional cases.

p. 3
02

Whether the Applicant's illness justified the delay

Holding

No - the medical evidence covered only up to 2011 and did not account for the period from discharge to March 2013 when limitation expired

Reasoning

The Applicant was terminated on 24 March 2010 and should have filed by 25 March 2013. He was hospitalised until September 2011 but produced no evidence of the admission, and the medical reports annexed related to a 2011 assessment. He gave no account of his time from September 2011 to March 2013, so the delay was not explained and the discretion was not attracted.

p. 3

Legal principles established

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  • The Court's power under section 12(3)(viii) of the Employment and Labour Relations Act is not fettered by the mandatory terms of section 90 of the Employment Act; where there is good reason that finds justification, the Court may invoke that discretion, but it should be applied sparingly and only in exceptional cases

Court orders

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  1. 1.Application by the Applicant dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Act (Industrial Court Act)section 12(3), 12(3)(viii)
  • Employment Actsection 90
  • Constitution of KenyaArticles 162(2), 162(3)
  • Limitation of Actions Actnot specified

Cases cited (2)

  • Owners of Motor Vessel “Lilian S” versus Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Peter Nyamai & 7 Others versus M J Clarke Limited
    [2013] eKLR
Jurisdiction invoked
Article 162(2) and 162(3) of the Constitution; section 12 of the Industrial Court Act (Employment and Labour Relations Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Magethe Joseph Kiarie v Eco Bank Kenya Limited [2015] KEELRC 452 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/452/eng@2015-08-12

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