Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause (Nairobi) – Notice of Motion dated 9.3.2016· [2016] KEELRC 1094 (KLR)

Ronald Mukoya Namai v Kenya Commercial Bank Limited [2016] KEELRC 1094 (KLR)

Employment and Labour Relations Court of Kenya
8 June 2016
1,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Claimant, formerly employed by the Respondent as a Relationship Manager – Asset Based Financing, was dismissed on 29 December 2009 on allegations of fraud. He was tried and convicted in Nairobi Chief Magistrates' Court Criminal Case No. 2321 of 2009 and incarcerated, but his conviction was later quashed on appeal to the High Court by a judgment delivered on 31 July 2015. On 9 March 2016 he moved the Court under a Notice of Motion seeking leave to file his Memorandum of Claim out of time, contending that the criminal proceedings and his incarceration legally disabled him from filing within the three-year period prescribed by section 90 of the Employment Act 2007, and that time stopped running during the criminal trial. The Respondent opposed, asserting that the Court has no jurisdiction to extend the limitation period under section 90; that the intended claim concerns termination, not the criminal proceedings; that criminal and civil cases may run concurrently; and that the Magistrates' Court had no jurisdiction over employment issues. The Court reproduced section 90, observed that it fetters the Court's discretion to extend time notwithstanding the Limitation of Actions Act, and went so far as to remark obiter that such a fetter is undesirable and that section 90 might be bad law. However, finding that the Claimant had not satisfactorily explained his delay in approaching the Court at the 11th hour, the Court declined to extend time and dismissed the application on 8 June 2016.

Key legal issues

#
01

Jurisdiction to extend the limitation period for employment claims under section 90 of the Employment Act

Holding

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

Reasoning

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.

p. 3
02

Whether incarceration and criminal proceedings excused the delay

Holding

The Court found the explanation insufficient; the Applicant did not demonstrate why he was approaching the Court at the 11th hour

Reasoning

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.

p. 3

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. 1.Application dismissed – leave to file suit out of time declined

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 50, 159(2)(d), 162
  • Employment and Labour Relations Court ActSections 3, 4, 12
  • Employment Act 2007Sections 41, 43, 45, 90
  • Limitation of Actions Act (Cap. 22)Sections 2, 4, 22, 23, 27, 28; section 4(1)
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.