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ELRCDismissedCause No. 1336 of 2013· [2016] KEELRC 1721 (KLR)

Jackson Mwalimu Ngunzi v Timothy Musyoki [2016] KEELRC 1721 (KLR)

Employment and Labour Relations Court of Kenya
2 February 2016
HWHellen S. Wasilwa
659 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, acting in person, filed a Memorandum of Claim on 20.8.2013 alleging wrongful and unfair termination of his services and non-payment of terminal benefits. He averred that he was employed by the Respondent in 1994 as a Carver earning Kshs. 7,500 per month, served one month's notice in July 2007, and was never paid severance pay, house allowance, leave, rest days and salary arrears totalling Kshs. 1,945,655/-. He sought that amount plus compensation for unlawful dismissal. The Respondent filed a preliminary objection that the claim was time barred, and a defence asserting the Claimant was a piece-rate worker engaged as work availability permitted, who had drifted into his own trade and was never terminated. The Claimant testified; the Respondent, though seeking adjournments, did not appear and the case proceeded in his absence. The court framed four issues: limitation, whether the Claimant was dismissed, whether termination was valid, and remedies. On limitation, the court held that although the alleged July 2007 termination fell under the old labour laws requiring filing within 6 months, the claim filed on 20.8.2013 was in any event beyond the 6-year limitation period. Ongoing settlement discussions could have supported an application for extension of time, but the Claimant filed without seeking leave, making the suit a non-starter. The court accordingly dismissed the claim for being time barred without considering the remaining issues and ordered each party to bear its own costs.

Key legal issues

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01

Whether the claim is time barred

Holding

Yes. The claim, filed on 20.8.2013, related to a July 2007 termination and was filed after the expiry of the 6-year limitation period without leave to file out of time.

Reasoning

The court noted that at the time of the alleged 2007 termination, the old labour laws required employment contract claims to be filed within 6 months. The claimant filed on 20.8.2013, beyond even the 6-year limitation period. Although ongoing settlement discussions could have grounded an application for extension of time, the claimant never sought such leave, so the suit could not proceed past the limitation point.

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02

Whether the claimant was dismissed and entitled to remedies

Holding

Not determined, as the limitation bar meant the case could not proceed beyond that point.

Reasoning

Having found the suit time barred, the court held it was not possible to consider the remaining issues of dismissal, validity of termination and remedies. The dismissal of the suit on limitation grounds pretermitted any findings on the employment relationship or entitlement to terminal benefits and compensation.

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Legal principles established

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  • A claim filed after the expiry of the applicable limitation period without leave of the court to file out of time is a non-starter and must be dismissed.

Court orders

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  1. 1.The case is dismissed for being time barred.
  2. 2.Each party will bear its own costs.

Authorities

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Legislation

  • Old Labour Laws (limitation for employment contract claims)6-month filing requirement
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (claim for wrongful and unfair termination and terminal benefits)

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, "Jackson Mwalimu Ngunzi v Timothy Musyoki [2016] KEELRC 1721 (KLR)", Case Analysis (2016). Cause No. 1336 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1721/eng@2016-02-02

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