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ELRCDismissedNot stated in judgment (application dated 1st March 2016)· [2016] KEELRC 463 (KLR)

Moses Ouma Odero v G4s Security Services Kenya Limited [2016] KEELRC 463 (KLR)

Industrial Court (Employment and Labour Relations Court)
8 September 2016
MOMaureen Onyango
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cannot extend the three-year deadline for filing unfair dismissal claims, so waiting too long permanently kills your case.

What this practically means

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Executive summary

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The applicant, Moses Ouma Odera, moved the Industrial Court by notice of motion dated 1st March 2016 seeking leave to file his claim out of time. He had allegedly been wrongfully and summarily dismissed on 5th January 2012, and the three-year limitation period under section 90 of the Employment Act expired on 4th January 2015. He attributed the delay to the outcome of Criminal Case No.670 of 2011 in the Chief Magistrate's Court at Kisumu, which he said bore on his claim, and relied on Francis Ngigi Ngugi v Nakumatt Holdings Limited and George Musyoki v Sarova Hotels, in which courts had held that the inherent powers under section 3A of the Civil Procedure Act allowed extension of time notwithstanding section 90. The respondent was served but neither filed a response nor attended; the application proceeded by written submissions. The court, per Maureen Onyango J, held that section 90 is couched in mandatory terms and gives no room for extension; neither the Employment Act nor the Limitation of Actions Act provides for extension in respect of contracts, sections 27 and 28 of the Limitation of Actions Act applying only to tort. Relying on Divecon v Samani and Owners of Vessel Lillian 'S' v Caltex Oil (K) Ltd, the court held that lapsed limitation deprives it of jurisdiction, and noted the Court of Appeal's decision in Kenya Airports Authority v Shadrack Abraham Kisongochi overturning a grant of similar leave. The application was dismissed.

Key legal issues

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01

Whether the court can extend time to file an employment claim beyond the three-year period in section 90 of the Employment Act

Holding

No - the court has no jurisdiction to grant leave to file suit out of time in employment cases; limitation extinguishes the right

Reasoning

The court held section 90 of the Employment Act is mandatory and admits no extension. Neither the Employment Act nor the Limitation of Actions Act provides for extension in respect of contracts of employment; sections 27 and 28 of the Limitation of Actions Act apply only to tort. Relying on Divecon v Samani and Owners of Vessel Lillian 'S', once limitation has set in the court lacks jurisdiction and must down its tools. The Court of Appeal in Kenya Airports Authority v Kisongochi had overturned a grant of such leave. The application was therefore dismissed.

p. 3

Legal principles established

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  • Section 90 of the Employment Act prescribes a mandatory three-year limitation period for employment claims and the court has no jurisdiction to extend it
  • Once the limitation period has lapsed the court is devoid of jurisdiction and the right is extinguished; limitation is a matter of law, not procedure
  • Sections 27 and 28 of the Limitation of Actions Act providing for extension do not apply to contract claims, only to claims in tort

Court orders

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  1. 1.The application for leave to file the claim out of time is dismissed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Limitation of Actions Actsection 4(1)
  • Limitation of Actions Actsections 27 and 28
  • Employment Actsection 90
  • Industrial Court (Procedure) RulesRule 16
  • Civil Procedure Actsection 3A

Cases cited (5)

  • Francis Ngigi Ngugi v Nakumatt Holdings Limited
    [2015] eKLR
  • George Musyoki v Sarova Hotels
    [2014] eKLR
  • Divecon v Samani
    [1995-1998] E.A. 48
  • Owners of Vessel Lillian 'S' v Caltex Oil (K) Ltd
  • Kenya Airports Authority v Shadrack Abraham Kisongochi
    Civil Appeal No.6 of 2015
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules, 2010; Rule 16 of the Industrial Court (Procedure) Rules

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 Ouma Odero v G4s Security Services Kenya Limited [2016] KEELRC 463 (KLR)", Case Analysis (2016). Not stated in judgment (application dated 1st March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/463/eng@2016-09-08

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