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ELRCDismissedEx parte application dated 10th March 2016· [2016] KEELRC 931 (KLR)

Elidah Awinja Onguche & another v International Livestock & another [2016] KEELRC 931 (KLR)

Employment and Labour Relations Court
15 July 2016
LNLINNET NDOLO
557 words in judgment
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The bottom line

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A Kenyan employment court refused to let a deceased worker's family sue 16 years late because they could not prove the employer's alleged fraud.

What this practically means

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Executive summary

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The Applicants, administrators ad litem of the estate of James Andango Ongondo (deceased), a former employee of the Respondent, applied ex parte by an application dated 10th March 2016 for leave to file suit out of time. Their intended suit claimed the deceased died of an occupational disease, raising claims in both tort and contract. They explained the delay on the basis that the Respondent had represented that it enjoyed diplomatic immunity from suit and legal process, leading them to lodge a claim with the Ministry of Foreign Affairs; they alleged they only discovered in 2015, on obtaining the relevant legal notice, that immunity from suit was not covered, and characterized the Respondent's representation as fraudulent. The Court noted the limitation periods under Section 4 of the Limitation of Actions Act - six years for contract, three years for tort - and that the cause of action accrued on the death on 3rd April 2000. Holding that the Applicants offered only a general assertion of misrepresentation with no proof of fraud, the Court found Section 26 of the Act inapplicable and held it lacked jurisdiction to entertain the claim. The application for enlargement of time was dismissed with no order for costs. Judgment was delivered in open court at Nairobi on 15th July 2016 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Applicants made out a case for enlargement of time under Section 26 of the Limitation of Actions Act

Holding

The application fails because the Applicants did not prove the fraud they alleged; consequently the Court lacks jurisdiction and the application is dismissed with no order for costs.

Reasoning

Actions in contract must be brought within six years and in tort within three years of accrual. The cause of action accrued on the deceased's death on 3rd April 2000, well outside those periods. The Applicants' only route to enlargement was Section 26, which requires proof of fraud. They asserted that the Respondent misrepresented that it enjoyed immunity from suit, but produced no proof of that fraud, merely a general statement of reliance on misrepresentation. Without proof of fraud, Section 26 is inapplicable and the Court cannot entertain the claim.

p. 2

Legal principles established

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  • Extension of time under Section 26 of the Limitation of Actions Act on grounds of fraud requires proof of the fraud; a general allegation of misrepresentation without evidence does not suffice

Court orders

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  1. 1.The application for enlargement of time is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 26
  • Limitation of Actions Act (Cap 22)Section 4
Jurisdiction invoked
Section 26 of the Limitation of Actions Act (Cap 22)

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, "Elidah Awinja Onguche & another v International Livestock & another [2016] KEELRC 931 (KLR)", Case Analysis (2016). Ex parte application dated 10th March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/931/eng@2016-07-15

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