Ronald Mukoya Namai v Kenya Commercial Bank Limited [2016] KEELRC 1094 (KLR)
The bottom line
#The Employment Court refused to let a dismissed banker sue years late, warning that Kenya's three-year limit on work claims is strict.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend the limitation period for employment claims under section 90 of the Employment Act
Section 90 of the Employment Act appears to fetter the Court's jurisdiction to extend time for filing suit out of time; the Court observed, obiter, that this fettering of discretion may be bad law but declined to extend time on the facts
The Court noted that section 90 ousts the general power under the Limitation of Actions Act to extend time for good cause. The Judge expressed reservations about the propriety of a statute fettering judicial discretion but, because the Applicant failed to justify the delay, the Court declined to exercise any discretion to grant leave. The claim was accordingly time-barred and leave was refused.
Whether incarceration and criminal proceedings excused the delay
The Court found the explanation insufficient; the Applicant did not demonstrate why he was approaching the Court at the 11th hour
The Applicant argued that the criminal trial and his incarceration suspended the running of time, and that the criminal proceedings shared substantially similar facts with the wrongful termination claim. The Respondent countered that the termination claim and the criminal case were separate and that nothing bars civil and criminal proceedings running concurrently. The Court was not persuaded that the Applicant had shown good reason for the delay and refused the extension.
Legal principles established
#- Section 90 of the Employment Act 2007 requires that civil actions arising out of the Act or a contract of service be commenced within three years of the act, neglect or default complained of, and appears to fetter the Court's jurisdiction to extend time notwithstanding the Limitation of Actions Act
Court orders
#- 1.Application dismissed – leave to file suit out of time declined
- Jurisdiction invoked
- Articles 50, 159(2)(d) and 162 of the Constitution of Kenya 2010; Sections 3, 4 and 12 of the Employment and Labour Relations Court Act 2010; Sections 41, 43, 45 and 90 of the Employment Act 2007; Sections 2, 4, 22, 23, 27 and 28 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ronald Mukoya Namai v Kenya Commercial Bank Limited [2016] KEELRC 1094 (KLR)", Case Analysis (2016). ELRC Cause (Nairobi) – Notice of Motion dated 9.3.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1094/eng@2016-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.