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ELRCOtherNot stated in the judgment· [2015] KEELRC 1059 (KLR)

Philip Gitonga Mbiriti v Equity Bank Limited [2015] KEELRC 1059 (KLR)

Employment and Labour Relations Court
19 May 2015
1,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent filed preliminary objections seeking dismissal of the claimant's suit for unlawful and wrongful termination on the ground that it was time barred. The cause of action arose on 31st May 2006 when the claimant was dismissed on allegations of stealing by servant; he was charged under section 281 of the Penal Code and acquitted on 29th July 2011, and he filed suit on 26th May 2014. The respondent relied on section 90 of the Employment Act, 2007, which sets a mandatory 3-year limitation period for employment claims. The claimant argued that his cause of action was regulated by the repealed Employment Act, Cap 226, that limitation may be extended in cases of fraud or mistake under Part III of the Limitation of Actions Act, that the pendency of criminal charges justified delay, and that Article 159 of the Constitution requires justice without undue regard to procedural technicalities. The court held that since the claim was founded on the Employment Act, 2007, section 90 mandatorily applied, and the suit filed 8 years after dismissal was barred. Even under the repealed Act, section 4(1) of the Limitation of Actions Act allows only 6 years for contract claims, which had also lapsed. Pending criminal charges do not postpone limitation; it was the claimant's duty to file within the permissible time. Article 159 cannot override specific statutory limitation provisions. Following Charles Manono Onchiri and Fred Mudave Gogo, the court upheld the preliminary objections, dismissed the suit, and ordered each party to bear their own costs.

Key legal issues

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01

Applicability of section 90 of the Employment Act, 2007 to a claim founded on the Employment Act, 2007

Holding

Since the claim is couched under the Employment Act, 2007, the mandatory 3-year limitation in section 90 applies, and the claim filed 8 years after dismissal is time barred

Reasoning

The court held that the claim, as pleaded, has its foundation under the Employment Act, 2007. Compliance with section 90 is therefore mandatory. The dismissal occurred on 31st May 2006 and suit was filed on 26th May 2014, far beyond 3 years. There is no discretion to extend lapsed time under the Limitation of Actions Act or the Employment Act. Article 159 does not override a specific statutory limitation.

p. 2
02

Effect of the repealed Employment Act, Cap 226 and the Limitation of Actions Act

Holding

Even if the repealed Act governed, section 4(1) of the Limitation of Actions Act allows 6 years for contract claims, and the claim still exceeded that period

Reasoning

The court noted that claims under the repealed Act were regulated by the 6-year rule under the Limitation of Actions Act for contract-based claims. Since the dismissal was on 31st May 2006, the time lapsed was beyond even 6 years by the date of filing in 2014, and no extension of time had been granted under the Limitation of Actions Act. The claim was barred under either regime.

p. 3
03

Whether pending criminal charges postpone the limitation period

Holding

Pendency of criminal charges does not prevent a claimant from filing a civil claim within the permissible time

Reasoning

Following Charles Manono Onchiri v Kenya National Hospital & 2 others, the court held that criminal charges do not run parallel to a civil claim, and it is the claimant's duty to protect his rights when the charges commence or when terminated. Nothing done by the respondent extended the limitation time. The claimant's reliance on the acquittal did not justify the delay.

p. 3
04

Whether Article 159 of the Constitution cures limitation breaches

Holding

Article 159 cannot be overstretched to override specific statutory limitation provisions

Reasoning

The court held that where there is a specific legal procedure governing time, the court is guided by it. The undue regard to technicalities under Article 159 does not apply to matters already addressed by existing legal provisions such as the 3-year limitation under section 90. Filing suit and then relying on mistake or fraud without following the specific statutory procedure is not curable by Article 159.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 mandatorily sets a 3-year limitation period for employment claims, and Article 159 of the Constitution does not oust it
  • Where a cause of action arose under the repealed Employment Act, Cap 226, the 6-year limitation period under section 4(1) of the Limitation of Actions Act applies to employment contract claims

Court orders

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  1. 1.The preliminary objections raised by the respondent were allowed
  2. 2.The claimant's suit was dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Act, Cap 226 Laws of Kenya (repealed)whole Act
  • Limitation of Actions Actsection 4(1); Part III
  • Constitution of KenyaArticle 159
  • Penal Codesection 281

Cases cited (5)

  • 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
  • Murgani versus Kenya Revenue Authority
    [2008] eKLR
  • Fred Mudave Gogo versus G4S Security Services (K) Ltd
  • Charles Manono Onchiri versus Kenya National Hospital & 2 others
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited in the extract)

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, "Philip Gitonga Mbiriti v Equity Bank Limited [2015] KEELRC 1059 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1059/eng@2015-05-19

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