Philip Gitonga Mbiriti v Equity Bank Limited [2015] KEELRC 1059 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Applicability of section 90 of the Employment Act, 2007 to a claim founded on the Employment Act, 2007
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
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.
Effect of the repealed Employment Act, Cap 226 and the Limitation of Actions Act
Even if the repealed Act governed, section 4(1) of the Limitation of Actions Act allows 6 years for contract claims, and the claim still exceeded that period
The court noted that claims under the repealed Act were regulated by the 6-year rule under the Limitation of Actions Act for contract-based claims.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.
Whether pending criminal charges postpone the limitation period
Pendency of criminal charges does not prevent a claimant from filing a civil claim within the permissible time
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.
Whether Article 159 of the Constitution cures limitation breaches
Article 159 cannot be overstretched to override specific statutory limitation provisions
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.
Legal principles established
#- 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
#- 1.The preliminary objections raised by the respondent were allowed
- 2.The claimant's suit was dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.