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ELRCDismissedNot stated in the judgment· [2016] KEELRC 998 (KLR)

Sheminah Aglae v Kenya Airways [2016] KEELRC 998 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
30 June 2016
HWHellen Wasilwa
450 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it cannot extend the 3-year deadline for filing employment claims under Section 90 of the Employment Act.

What this practically means

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Executive summary

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The Applicant, a former employee of the Respondent, brought a Notice of Motion under Sections 3, 12(3) and 20(1) of the Industrial Court Act, Rule 27(1)(g) of the Industrial Court (Procedure) Rules 2010, Article 159(2) of the Constitution and Section 90 of the Employment Act, seeking leave to file her intended claim against the Respondent out of time and to have the annexed Draft Memorandum of Claim deemed duly filed upon payment of court charges. She explained that she had been unwell, having been on sick leave with a long-standing back problem requiring surgery as evidenced by medical reports from 2011 and 2012, and alleged that her Cluster Manager promised her half salary during sick leave; she was ultimately dismissed for absconding duty by letter dated 10 June 2012. The court observed that despite the medical evidence, it was unclear whether she had recovered, and there was no evidence of incapacity since 2012, the last communication on the illness. Relying on Section 90 of the Employment Act, which limits employment claims to 3 years and does not leave room for judicial extension of time, the court found the application unmerited and declined to allow it. Judgment was read in open court on 30 June 2016 by Lady Justice Hellen Wasilwa. The applicant's advocates appeared; there was no appearance for the Respondent.

Key legal issues

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01

Whether leave to file a claim out of time under Section 90 of the Employment Act can be granted

Holding

The application was not merited; Section 90 does not permit extension of time, and the Applicant gave no evidence of incapacity since 2012 justifying the delay

Reasoning

The court noted the Applicant's medical evidence from 2011 and 2012 showing she was on sick off and advised to undergo surgery, but observed that the last communication on the illness was in 2012 and there was no evidence she had been too sick to take action since her dismissal. The court held that the 3-year limitation under Section 90 is rigid and admits no judicial extension, and accordingly declined the application.

p. 2

Legal principles established

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  • Section 90 of the Employment Act caps employment claims at 3 years and does not leave room for the court to extend time

Court orders

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

Authorities

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Legislation

  • Industrial Court Act No. 20 of 2011Sections 3, 12(3), 20(1)
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(g)
  • Constitution of KenyaArticle 159(2)
  • Employment Act Cap 226 Laws of KenyaSection 90
Jurisdiction invoked
Sections 3, 12(3) and 20(1) of the Industrial Court Act No. 20 of 2011; Rule 27(1)(g) of the Industrial Court (Procedure) Rules 2010; Article 159(2) of the Constitution; Section 90 of the Employment Act Cap 226

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, "Sheminah Aglae v Kenya Airways [2016] KEELRC 998 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/998/eng@2016-06-30

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