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ELRCDismissedNotice of motion dated 11th November, 2014· [2016] KEELRC 1765 (KLR)

Aloys Osoro Obaga v Principal Sec. Ministry Of Environment & Natural [2016] KEELRC 1765 (KLR)

Employment and Labour Relations Court
26 January 2016
MOMAUREEN ONYANGO
818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenyan courts cannot extend the six-year deadline for filing contract claims, so employment-related terminal benefits suits must be filed on time.

What this practically means

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Executive summary

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The applicant, Alloys Osoro Obaga, moved the court by notice of motion dated 11th November 2014 seeking leave to file suit out of time against the Principal Secretary, Ministry of Environment and Natural Resources, to claim terminal benefits following his dismissal from employment. He relied on Order 51 of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act and Sections 27 and 28 of the Limitation of Actions Act. He deponed that he was employed from 1984, dismissed after being charged with stealing by servant in Kisii CM Criminal Case No. 1010 of 2001, acquitted on 21st July 2003, and thereafter unsuccessful in judicial review proceedings (Kisumu High Court Civil Application No. 67 of 2005) dismissed on 14th November 2011, in which the court directed him to pursue his private right in ordinary civil litigation. The court held that the claim, having arisen before the Employment Act 2007, fell under section 4 of the Limitation of Actions Act with a six-year limitation period; that sections 27 and 28 apply only to negligence, nuisance and breach of duty and do not extend time in contract; and that, following Divecon vs Samani, no court may extend time for a contract action filed beyond six years. The court further found the claim res judicata, the respondent's liability having been determined by a court of competent jurisdiction. The application was dismissed on 26th January 2016.

Key legal issues

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01

Whether sections 27 and 28 of the Limitation of Actions Act permit extension of time for a contractual employment claim

Holding

No - those sections apply to negligence, nuisance and breach of duty, not contract

Reasoning

The court held that sections 27 and 28 of the Limitation of Actions Act, relied on by the applicant, govern extension of time in actions for negligence, nuisance and breach of duty and have no application to contract claims. The Act contains no provision extending time for contract claims, which must be filed within six years under section 4.

p. 2
02

Whether the claim is res judicata

Holding

Yes - the respondent's liability was determined in the prior judicial review proceedings

Reasoning

In Kisumu High Court Civil Application No. 67 of 2005 the court had found the claim time-barred and directed the applicant to pursue his private right in ordinary civil litigation. That finding of fact was uncontested, and the court held it could not overlook it, rendering the present claim res judicata.

p. 2

Legal principles established

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  • The Limitation of Actions Act does not provide for extension of time in actions founded on contract

Court orders

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  1. 1.The application dated 11th November, 2014 is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 3A and 63(e)
  • Limitation of Actions ActSections 4, 27 and 28
  • Employment Act 2007Section 90
  • Penal CodeSection 279(a)

Cases cited (1)

  • Divecon vs Samani
    [1998] 1 EA 48
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Sections 27 and 28 of the Limitation of Actions Act

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, "Aloys Osoro Obaga v Principal Sec. Ministry Of Environment & Natural [2016] KEELRC 1765 (KLR)", Case Analysis (2016). Notice of motion dated 11th November, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1765/eng@2016-01-26

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