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ELRCDismissedOriginating Summons (unspecified number)· [2015] KEELRC 1650 (KLR)

Risper Muwang'o Ochieng v Chairman Board of Governors St. Paul's Sigomire Secondary School & another [2015] KEELRC 1650 (KLR)

Employment and Labour Relations Court
13 November 2015
2,528 words in judgment
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The bottom line

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A Kenyan court refused to let a dismissed employee sue years late, holding that a rejected settlement offer did not extend the legal deadline.

What this practically means

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Executive summary

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The Applicant, formerly employed as a school Matron, Cateress and Storekeeper until her dismissal on 21st October 2011, sought leave under an Originating Summons to file suit out of time for compensation for unlawful dismissal, relying on settlement negotiations and an alleged acknowledgement of her claim in the Respondent's advocates' letter of 15th May 2014 offering one month's salary per year worked. The Respondent raised a Preliminary Objection (which the court directed be treated as grounds of opposition) that the claim was statute-barred under Section 90 of the Employment Act, which requires claims arising from contracts of service to be filed within three years. The Applicant relied on Sections 23(3) and 39(1)(b) of the Limitation of Actions Act and two authorities said to support extension of time on the basis of acknowledgement and estoppel. The court held that the Respondent's letter was a without-prejudice counter-offer which the Applicant rejected, not an acknowledgement capable of creating a fresh cause of action; that Section 23(3) applies only to debts or liquidated pecuniary claims and not to claims for reinstatement and compensation for unfair dismissal; and that no promissory or equitable estoppel arose because limitation was never mentioned in the parties' correspondence. The cases relied on by the Applicant were distinguished. Applying the Court of Appeal decision in Divecon v Samani Ltd, the court dismissed the application with no orders for costs.

Key legal issues

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01

Whether the Respondent's letter of 15th May 2014 amounted to an acknowledgement under Section 23(3) of the Limitation of Actions Act

Holding

It did not; it was a without-prejudice counter-offer that the Applicant rejected

Reasoning

The court found that the offer was made on a without prejudice basis and could not be used against the Respondent; limitation was not foreseeable during negotiations as the period had not lapsed; the Applicant rejected the offer and never responded to the request for a counter-offer; and Section 23(3) covers only debts or liquidated pecuniary claims, not the reinstatement and compensation claims the Applicant made.

p. 5
02

Whether the Respondent was estopped from pleading limitation under Section 39(1)(b) of the Limitation of Actions Act

Holding

No estoppel arose because there was no promise not to plead limitation and limitation was never mentioned in the parties' correspondence

Reasoning

Section 39(1)(b) requires a contract not to plead limitation or an estoppel (including equitable or promissory estoppel). The court found no such promise in the correspondence between the advocates; the issue of limitation never featured in the negotiations, so no representation capable of grounding estoppel existed.

p. 5
03

Whether the Applicant should be granted extension of time to file suit for unlawful dismissal under Section 90 of the Employment Act

Holding

No; the application was dismissed as the claim was statute-barred and the cases relied on by the Applicant were distinguishable

Reasoning

Section 90 of the Employment Act requires claims arising from contracts of service to be commenced within three years. With no acknowledgement or estoppel extending time, the court fell back on the Divecon v Samani principle that no court may entertain an action brought out of time or extend time for it. The cases cited by the Applicant were found distinguishable on their facts.

p. 5

Legal principles established

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  • A without-prejudice offer to settle that is rejected does not constitute an acknowledgement of a claim sufficient to create a fresh cause of action under Section 23(3) of the Limitation of Actions Act
  • Section 23(3) of the Limitation of Actions Act applies only to recovery of a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and does not cover claims for reinstatement and compensation for unfair dismissal
  • Section 39(1)(b) of the Limitation of Actions Act requires a promise not to plead limitation constituting promissory or equitable estoppel, which cannot arise where limitation was never discussed
  • No court may entertain an action founded on contract brought after the limitation period, nor any application to extend time for bringing it

Court orders

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  1. 1.The application for leave to file suit out of time is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap 22)Section 4(1)
  • Limitation of Actions Act (Cap 22)Section 23(1),(2),(3)
  • Limitation of Actions Act (Cap 22)Section 24(1),(2)
  • Limitation of Actions Act (Cap 22)Section 27(2)
  • Limitation of Actions Act (Cap 22)Section 39(1)(b) and 39(1),(2)

Cases cited (5)

  • Eliud Gatundu Wanjohi & 3 Others v Kenya Railways Corporation
    [2014] eKLR
  • Fred Mudave v G4S Security Services (k) Ltd
    [2014] eKLR
  • Laban Chema Libabu v Bata Shoe Co. (K) Ltd
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Divecon v Samani Ltd
    [1995-1998] 1 EA 48
Jurisdiction invoked
Section 90 of the Employment Act and the Limitation of Actions Act (Cap 22) considered; court proceeding on an Originating Summons for extension of time (leave to file suit out of time)

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, "Risper Muwang'o Ochieng v Chairman Board of Governors St. Paul's Sigomire Secondary School & another [2015] KEELRC 1650 (KLR)", Case Analysis (2015). Originating Summons (unspecified number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1650/eng@2015-11-13

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