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ELRCStruck OutNot stated in judgment (originally Kisumu HCC No. 23 of 2013)· [2016] KEELRC 464 (KLR)

George Amoth & 14 others v Kenya Medical Research Institute (Kemri) [2016] KEELRC 464 (KLR)

Employment and Labour Relations Court
15 September 2016
732 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 struck out a 20-year-old casual employment claim because contract suits must be filed within strict time limits that courts cannot extend.

What this practically means

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Executive summary

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The Claimants sued the Respondent by a Plaint dated 27th February 2013, filed in the High Court at Kisumu on 12th July 2013, seeking damages for unlawful casual engagement, interest and costs. The suit was transferred to the Employment and Labour Relations Court by order dated 2nd October 2014. The Respondent raised a preliminary objection dated 18th June 2015 on the ground that the claim offended section 4 of the Limitation of Actions Act and was statute barred. The objection was argued by written submissions. The Respondent submitted that the claims arose from casual employment between 1986 and 1993, more than 20 years before suit, that section 4 requires contract suits to be filed within 6 years, and that section 90 of the Employment Act bars contract of service claims not filed within 3 years. The Claimants argued that there was fraud and that they discovered the material facts only in 2013. The court found no dispute that the claims related to casual employment between 1986 and 1993, and that the suit was filed without leave to file out of time, making it bad in law on its face. Relying on Mary Osundwa v Nzoia Sugar Company Limited and Kenya Airports Authority v Kisongochi, the court held it had no jurisdiction under section 27 of the Limitation of Actions Act to extend time in contract claims. The suit was struck out with no orders for costs, on 15th September 2016.

Key legal issues

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01

Whether the claim is statute barred

Holding

The claim for casual employment between 1986 and 1993, filed in 2013, is bad in law on its face for contravening section 4 of the Limitation of Actions Act and section 90 of the Employment Act

Reasoning

The claims relate to casual employment between 1986 and 1993, more than 20 years before suit was filed in 2013. Section 4 of the Limitation of Actions Act requires contract claims to be brought within 6 years, and section 90 of the Employment Act bars civil proceedings founded on contract of service not brought within 3 years. The Claimants filed suit without seeking leave to file out of time, rendering the claim statute barred and bad in law on the face of it.

p. 3
02

Whether the court could extend time under section 27 of the Limitation of Actions Act

Holding

No jurisdiction to extend time exists in contract claims; the extension provision applies only to tort claims such as negligence, nuisance and breach of duty

Reasoning

Relying on Mary Osundwa v Nzoia Sugar Company Limited, the court held that section 27 of the Limitation of Actions Act does not give jurisdiction to extend time in claims founded on contract. Even had the Claimants applied for leave, the court would have lacked jurisdiction to grant it. Section 28 requires an application before commencement of the action, which was not made.

p. 3

Legal principles established

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  • Section 27 of the Limitation of Actions Act does not confer jurisdiction on the court to extend time for filing suit out of time in cases involving contract or any cause of action other than tort
  • Jurisdiction is the bedrock of any court decision; without it a court's findings are a nullity
  • A claim extinguished by expiry of the limitation period cannot be entertained by the court

Court orders

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  1. 1.The suit is struck out as bad in law for being filed out of time without leave
  2. 2.No orders for costs - each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4
  • Limitation of Actions Actsection 27
  • Limitation of Actions Actsection 28
  • Employment Actsection 90

Cases cited (6)

  • JOSEPH OWINO v RICHARD M. BENET
    [2015]eKLR
  • PETER CHEPKOCHOI MITEI v ESTHER JELAGAT NG'ENY & 3 OTHERS
    [2014]eKLR
  • HARRISON NDUNGU MWAI & 500 OTHERS v ATTORNEY GENERAL
    [2014]eKLR
  • THURANIRA KARAURI v AGNES NCHECHE
    [1997]eKLR
  • MARY OSUNDWA v NZOIA SUGAR COMPANY LIMITED
    [2002]eKLR
  • KENYA AIRPORTS AUTHORITY v SHADRACK ABRAHAM KISONGOCHI
    Kisumu Civil Appeal No.6 of 2015
Jurisdiction invoked
Jurisdiction under the Limitation of Actions Act and Employment Act considered; suit transferred from the High Court by order dated 2nd October 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Amoth & 14 others v Kenya Medical Research Institute (Kemri) [2016] KEELRC 464 (KLR)", Case Analysis (2016). Not stated in judgment (originally Kisumu HCC No. 23 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/464/eng@2016-09-15

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