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ELRCDismissedNot stated in the judgment· [2016] KEELRC 1434 (KLR)

Denis Ksang Ripko v Kenya Commercial Bank Limited [2016] KEELRC 1434 (KLR)

Employment and Labour Relations Court (Industrial Court)
3 March 2016
MOMAUREEN ONYANGO
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled it cannot extend the 3-year deadline for contract-based work claims, so the late-filed case failed.

What this practically means

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Executive summary

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The applicant, Denis Ksang Ripko, moved the Industrial Court by notice of motion under Articles 48, 159(2) and 160(1) of the Constitution, Order 50 Rule 6 of the Civil Procedure Rules, the Industrial Court Act and section 90 of the Employment Act, seeking leave to enlarge time to file a claim out of time and to have his draft Memorandum of Claim deemed duly filed. He was dismissed by the respondent bank on 18 July 2012 and on the same day arrested and charged with forgery and stealing by servant; he was acquitted under section 210 of the Criminal Procedure Code on 30 July 2015, and filed this application on 6 October 2015 using handwritten proceedings. The respondent opposed, arguing that the court had no jurisdiction or discretion to extend time for claims arising out of employment contracts, that a pending criminal case is no bar to civil litigation, and that no plausible reason for delay had been shown. By consent the application proceeded by way of written submissions. The applicant relied on Beatrice Kahai Adagala and Fred Mudave Gogo to argue for an unfettered discretion to extend time. The court, however, found that section 90 of the Employment Act, limiting claims to 3 years, is an exception to section 4(1) of the Limitation of Actions Act, and that Part III of that Act does not permit extension in contract claims. Following Divecon Limited v Samani, the court held it lacked jurisdiction to extend the limitation period and did not consider the justifiability of the delay. The application was dismissed with no orders for costs.

Key legal issues

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01

Whether the court has jurisdiction to extend time for filing employment claims founded on contract

Holding

The court has no jurisdiction to extend the limitation period in contract-based claims, following Divecon Limited v Samani.

Reasoning

Section 90 of the Employment Act caps employment claims at 3 years as an exception to section 4(1) of the Limitation of Actions Act (6 years for contract). Part III of the Limitation of Actions Act allows extension only in cases of disability, acknowledgement and part payment, fraud, mistake and ignorance of material facts - not contracts of service. The Court of Appeal in Divecon Limited v Samani held no court has jurisdiction to extend limitation in contract cases, and this court is bound by that.

p. 4
02

Whether the reasons for delay were justifiable

Holding

The court did not consider the question of delay as it lacked jurisdiction, which is determinative.

Reasoning

Because jurisdiction is absent, the court declined to examine whether the delay (occasioned by the pending criminal case and the obtaining of proceedings) was inordinate or excusable, holding that jurisdiction must be acquired before judgment is given on such discretionary matters.

p. 4

Legal principles established

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  • The Industrial Court cannot extend the limitation period in a claim based on contract, having no jurisdiction to do so under section 90 of the Employment Act and Part III of the Limitation of Actions Act
  • Section 90 of the Employment Act, requiring claims within 3 years, is an exception to section 4(1) of the Limitation of Actions Act

Court orders

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  1. 1.The application is dismissed with no orders for costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 48
  • Constitution of Kenya 2010Article 159(2)
  • Constitution of Kenya 2010Article 160(1)
  • Civil Procedure Rules 2010Order 50 Rule 6
  • Industrial Court ActSection 12(2)
  • Industrial Court ActSection 20(1)
  • Industrial Court ActSection 36
  • Industrial Court ActSection 12(3)(viii)
  • Employment Act Cap 226Section 90
  • Limitation of Actions Act (Chapter 22)Section 4(1) and Part III
  • Criminal Procedure CodeSection 210
  • Employment and Labour Relations ActSection 12(3)(viii)

Cases cited (10)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2014] eKLR
  • Fred Mudave Gogo v G4S Security Services (K) Limited
    [2014] eKLR
  • Owners of Motor Vessel 'Lilian s' v Caltex Oil (Kenya) Limited
    [1989] eKLR
  • Peter Nyamai and 7 others v M. J. Clarke Limited
    [2013] eKLR
  • Divecon Limited v Samani
    [1995-1998] 1 EA 48 at 54
  • Magethe Joseph Kiarie v Eco Bank (K) Limited
    Misc. App. 80 of 2014
  • Maria Machocho v Total Kenya Limited
    Misc. App. 2 of 2012
  • Dismas Kisika v Min. of Education, Science & Technology
    Misc. App. 27 of 2014
  • Kenya Electrical Trades & Allied Workers Union v KPLC Co. Limited
    Misc. App. 3 of 2015
  • Laban Chema Libabu v Bata Show Co. (K) Limited
    Misc. App. 46 of 2014
Jurisdiction invoked
Articles 48, 159(2) and 160(1) of the Constitution; Order 50 Rule 6 of the Civil Procedure Rules 2010; Sections 12(2), 20(1) and 36 of the Industrial Court Act; Section 90 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Denis Ksang Ripko v Kenya Commercial Bank Limited [2016] KEELRC 1434 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1434/eng@2016-03-03

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