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ELRCDismissedNot stated in judgment· [2015] KEELRC 461 (KLR)

Joseph Thuku Muchira v Chai Co-operative Savings & Credit Ltd [2015] KEELRC 461 (KLR)

Employment and Labour Relations Court
30 September 2015
MMM. Mbaru
1,215 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a delayed unfair dismissal claim because the law gives employees only three years to sue after termination—no exceptions.

What this practically means

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Executive summary

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The claimant, Joseph Muchina, sued on 3rd April 2013 claiming unfair termination and unpaid terminal dues, alleging he was employed from 7th May 1990 until his termination for misconduct on 15th September 2008. The respondent filed a notice of preliminary objection on 6th November 2013 on three grounds: that the suit was statute barred under section 90 of the Employment Act, Cap 226; that the court lacked jurisdiction; and that the suit was unsustainable, defective and an abuse of process. The claimant filed no response and made no submissions, and was absent on the dates fixed for confirmation of filing, so the court interrogated the objection as an issue of law. Relying on the Mukisa Biscuit principles, the respondent argued that the claim, founded on the Employment Act which came into force on 2nd June 2008, had to be filed within three years. The court held that section 90 is mandatory and confers no discretion to extend time, applying Maria Machocho v Total Kenya Ltd, Meshack Angeng'o Omondi v Eldoret Municipal Council, and the Court of Appeal's decision in Divecon v Samani. Since the cause of action arose on 15th September 2008 and the suit was filed over 4½ years later, the claim offended the mandatory limitation provision. The preliminary objections were upheld, the suit was dismissed, and costs were awarded to the respondent. Judgment was delivered at Nairobi on 30th September 2015 by M. Mbaru, J.

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 15th September 2008 upon termination, and the suit was filed on 3rd April 2013, over 4½ years later, beyond the mandatory three-year period

Reasoning

The court set out section 90 of the Employment Act, which mandates that actions based on the Act or a contract of service must be commenced within three years. The memorandum of claim showed termination on 15th September 2008 and filing on 3rd April 2013. The court relied on authority that the provision is mandatory and admits no discretion to extend time. A suit filed after the lapse of three years offends the provision and must fail.

p. 2
02

Whether the preliminary objection was properly raised as a point of law

Holding

Yes - limitation is a pure point of law determinable instantly under the Mukisa Biscuit principles

Reasoning

The respondent relied on the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd principles, submitting that a plea of limitation being a point of law should be determined instantly. The claimant filed no response or submissions, leaving the court to interrogate the issue of law on its own. The court found the objection well founded and upheld it, dismissing the suit with costs to the respondent.

p. 1

Legal principles established

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  • Section 90 of the Employment Act, 2007 mandatorily requires that any civil action based on the Act or a contract of service be commenced within three years of the act, neglect or default complained of, and the court has no discretion to extend that time

Court orders

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  1. 1.The preliminary objections raised are upheld
  2. 2.The suit is dismissed
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Employment Act, Cap 226 (Employment Act, 2007)Section 90
  • Limitation of Actions Act (Chapter 22)Section 4(1)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors ltd
    [1969] EA 969
  • Fred Mudave Gogo versus G4S Security Services (K) Ltd
    [2014] eKLR
  • Maria Machocho versus Total Kenya Limited
    Misc. Civil Cause No. 2 of 2012
  • Meshack Angeng'o Omondi versus Eldoret Municipal Council & Another
    Cause No. 15(N) of 2010
  • Alexander Mugambi Nguruthi versus Chogoria Farmers' Co-operative Society Ltd
    [1986]
  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (the court noted the claim 'being one based on employment and labour relations'); the respondent contested jurisdiction in the preliminary objection

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 Thuku Muchira v Chai Co-operative Savings & Credit Ltd [2015] KEELRC 461 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/461/eng@2015-09-30

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