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ELRCDismissedNot stated in the judgment· [2015] KEELRC 931 (KLR)

Moses Ochieng Musa v Kisumu Water & Sewerage Co. Ltd [2015] KEELRC 931 (KLR)

Industrial Court of Kenya
27 February 2015
683 words in judgment
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The bottom line

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A Kenyan employment claim filed too late was dismissed because missing the three-year deadline cannot be excused, even on fairness grounds.

What this practically means

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Executive summary

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The applicant, Moses Ochieng Musa, filed a Notice of Motion seeking leave for extension of time to file his employment claim, an order deeming the plaint filed and served on time, and costs. The application was supported by affidavits of the applicant and his advocate, James Aggrey Mwamu, and was argued ex parte by Mr. M. M. Omondi on 5th February 2015. Counsel attributed the delay to the applicant's lack of funds after losing employment and invoked Article 159 of the Constitution. The court noted that the applicant resigned from employment on 5th October 2009 and that Section 90 of the Employment Act requires employment claims to be filed within three years. The court held that the Limitation of Actions Act permits extension only on the Part III grounds of disability, acknowledgement and part payment, fraud, mistake and ignorance of material facts, none of which was cited. The court further held that limitation is substantive law rather than a procedural technicality and cannot be overcome through Article 159(2)(d). It also declined to make findings on statutory provisions cited but not argued, holding that a litigant must make the necessary arguments to persuade the court. The application was found to lack merit and was dismissed.

Key legal issues

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01

Whether the court may extend time to file an employment claim brought outside the three-year limitation period under Section 90 of the Employment Act

Holding

The application was dismissed because the applicant did not establish any of the Part III grounds under the Limitation of Actions Act (disability, acknowledgement and part payment, fraud, mistake, ignorance of material facts) that permit extension.

Reasoning

The claimant resigned on 5th October 2009 and his claim was filed well beyond the three-year period mandated by Section 90 of the Employment Act. The Limitation of Actions Act allows extension only in the circumstances set out in Part III, none of which was cited by the applicant. His explanation of lack of funds due to being out of employment was insufficient in law. The application therefore lacked merit and was dismissed.

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02

Whether Article 159(2)(d) of the Constitution (procedural technicalities) can override a statutory limitation period

Holding

No - limitation is substantive law that extinguishes the right of action and is not a procedural technicality amenable to Article 159 override.

Reasoning

Counsel relied on Article 159 of the Constitution in urging the court to consider the application in the spirit of substantive justice. The court held that limitation law is substantive, not procedural, and its effect is to extinguish the right to make a claim. Consequently, the dictates of Article 159(2)(d) cannot be invoked to bypass an expired limitation period.

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03

Whether the court can make findings on statutory provisions not argued by counsel

Holding

The court declined to make any finding on the provisions cited but not argued, since a litigant must make the necessary arguments to persuade the court.

Reasoning

The application cited Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Section 12 of the Industrial Court Act, Order 56 Rule 6 of the Civil Procedure Rules and Article 159 of the Constitution. However, counsel who argued the application ex parte did not refer to any of these provisions in submissions. The court held that it is not its duty to make presumptions on behalf of a litigant, and declined to make findings on those sections.

p. 2

Legal principles established

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  • Limitation of actions is substantive law, not a procedural technicality, and cannot be overcome under Article 159(2)(d) of the Constitution
  • A court will not presume the legal grounds for a litigant's application; the litigant must argue the law relied upon

Court orders

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  1. 1.The Notice of Motion dated 16th October 2013 seeking extension of time to file the claim is dismissed with no orders as to costs stated

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 95
  • Industrial Court ActSection 12
  • Civil Procedure RulesOrder 56 Rule 6
  • Constitution of KenyaArticle 159 and Article 159(2)(d)
  • Employment ActSection 90
  • Limitation of Actions ActPart III
Jurisdiction invoked
Section 12 of the Industrial Court Act, Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Order 56 Rule 6 of the Civil Procedure Rules, Article 159 of the Constitution

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, "Moses Ochieng Musa v Kisumu Water & Sewerage Co. Ltd [2015] KEELRC 931 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/931/eng@2015-02-27

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