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ELRCDismissedNot stated in the judgment (Notice of Motion dated 3rd March 2015, filed 10th March 2015)· [2016] KEELRC 1784 (KLR)

Nelson Mwangi Nderitu v Kenya Tea Development Agency & 4 others [2016] KEELRC 1784 (KLR)

Employment and Labour Relations Court
29 January 2016
LNLinnet Ndolo
531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cannot extend the three-year deadline for filing employment claims, even when exceptional circumstances caused the delay.

What this practically means

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Executive summary

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The Applicant brought an ex parte Notice of Motion dated 3rd March 2015 seeking leave to file suit out of time against the 1st and 2nd Respondents, his former employers. He deponed that he was employed from 1st July 1989 until 20th July 2008, when he was summarily dismissed on allegations of theft. He was thereafter charged in Criminal Case No. 160 of 2008 at Gatundu Law Courts and acquitted under Section 210 of the Criminal Procedure Code. Before he could obtain the records needed to lodge his claim, fire gutted Gatundu Law Courts on 18th May 2009 and destroyed his file; the Chief Magistrate confirmed this destruction by letter dated 30th January 2015. The court framed a single issue: whether the Applicant had made out a case for leave to file his claim out of time. The cause of action arose on 25th July 2008 upon summary dismissal, so under Section 90 of the Employment Act, 2007 the claim ought to have been filed by 24th July 2011. Following Radido J in Peter Nyamai & 7 Others v M.J Clarke Limited, the court held that limitation of actions is a substantive matter touching on its jurisdiction and that it has no jurisdiction to extend time for claims arising out of employment contracts governed by the Employment Act, 2007. The application was accordingly dismissed with no order for costs.

Key legal issues

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01

Whether the Court can grant leave to file an employment claim out of time

Holding

The Court cannot; Section 90 of the Employment Act, 2007 bars claims not instituted within three years, and the Court has no jurisdiction to extend that period.

Reasoning

The cause of action arose on 25th July 2008 upon summary dismissal, so the claim ought to have been filed by 24th July 2011 under Section 90 of the Employment Act, 2007. Relying on Radido J in Peter Nyamai & 7 Others v M.J Clarke Limited, the court held that limitation is a substantive jurisdictional matter and that the Court has no power to extend time for employment claims governed by the Act. The destruction of the court file by fire, though unfortunate, did not confer jurisdiction.

p. 2

Legal principles established

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  • Limitation of actions is a substantive matter touching on jurisdiction, and this Court has no jurisdiction to extend time for claims arising out of employment contracts governed by the Employment Act, 2007

Court orders

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  1. 1.The Applicant's application for leave to file suit out of time is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Criminal Procedure CodeSection 210

Cases cited (1)

  • Peter Nyamai & 7 Others v M.J Clarke Limited
    [2013]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; limitation governed by Section 90 of the Employment Act, 2007

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, "Nelson Mwangi Nderitu v Kenya Tea Development Agency & 4 others [2016] KEELRC 1784 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 3rd March 2015, filed 10th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1784/eng@2016-01-29

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