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ELRCDismissedCause No. (not stated in judgment) - Notice of Motion dated 29th June 2016· [2016] KEELRC 538 (KLR)

James Nyaga Wambugu & 181 others v Telkom Kenya Limited [2016] KEELRC 538 (KLR)

Employment and Labour Relations Court
14 October 2016
LNLinnet Ndolo
452 words in judgment
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The bottom line

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A Kenyan court ruled it cannot extend the six-year deadline for contract-based employment claims, so the former employees' terminal dues claim was dismissed as too late.

What this practically means

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Executive summary

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The Applicants, former employees of Kenyatta University, brought an ex parte Notice of Motion dated 29th June 2016 seeking extension of time to file suit for recovery of terminal dues. They averred that following a civil service reform programme announced around 2000, they and about 180 colleagues were retrenched with packages contrary to Government circulars and employment laws. They claimed they only learnt their names were omitted from the list of plaintiffs in earlier suits against the Respondent upon settlement of those cases, when payments were being made. Counsel for the Applicants submitted that the cause of action arose in 2006, making the Limitation of Actions Act the applicable law. The court, applying section 4(1)(a) of that Act, noted that actions founded on contract must be brought within six years of accrual of the cause of action, and that per the Court of Appeal's decision in Divecon Limited v Shirinkhanu Sadrudin Samani (Civil Appeal No. 142 of 1997), the court has no jurisdiction to extend time. On that basis the application failed. The court dismissed the Applicants' application and made no order for costs. Judgment was delivered at Nairobi on 14th October 2016 by Linnet Ndolo, Judge; Miss Kitonga appeared for the Applicants and there was no appearance for the Respondent.

Key legal issues

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01

Whether time for filing suit for terminal dues could be extended

Holding

The application was dismissed because the claim, founded on contract, was time-barred under section 4(1)(a) of the Limitation of Actions Act and the court has no jurisdiction to extend time.

Reasoning

The cause of action arose in 2006, making the Limitation of Actions Act applicable. Under section 4(1)(a) of that Act, actions founded on contract must be brought within six years. The Court of Appeal in Divecon Limited v Samani held that the court has no jurisdiction to extend time for such claims. The Applicants' application for extension of time therefore failed.

p. 2

Legal principles established

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  • Actions founded on contract may not be brought after the end of six years from the date the cause of action accrued, under section 4(1)(a) of the Limitation of Actions Act
  • The court has no jurisdiction to extend time under the Limitation of Actions Act for a claim founded on contract

Court orders

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  1. 1.The Applicants' application dated 29th June 2016 seeking extension of time for filing suit is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a)

Cases cited (1)

  • Divecon Limited v Shirinkhanu Sadrudin Samani
    Civil Appeal No. 142 of 1997
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the applicable employment law; application under the Limitation of Actions Act

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, "James Nyaga Wambugu & 181 others v Telkom Kenya Limited [2016] KEELRC 538 (KLR)", Case Analysis (2016). Cause No. (not stated in judgment) - Notice of Motion dated 29th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/538/eng@2016-10-14

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