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ELRCDismissedCause No. 739 of 2013 (with Causes 740, 741 and 742 of 2013)· [2017] KEELRC 1874 (KLR)

Solomon Kasaine & 3 others v Yaars Bar & Restaurant Limited [2017] KEELRC 1874 (KLR)

Employment and Labour Relations Court
24 January 2017
HWHellen Wasilwa
752 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out four late-filed claims, confirming the three-year deadline under Section 90 of the Employment Act cannot be extended, even by one day.

What this practically means

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Executive summary

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Four consolidated employment causes (Nos. 739, 740, 741 and 742 of 2013) were filed against Yaars Bar & Restaurant Limited by former employees. In its Statement of Defence the Respondent raised a Preliminary Objection in each cause, contending that all claims were time barred under Section 90 of the Employment Act, 2007, which requires employment actions to be instituted within three years of the act complained of. The Respondent calculated the overruns as two months (Cause 739), three months (Cause 740), and 8-9 days (Causes 741 and 742), and urged that the Court had no jurisdiction to extend time, citing Josephat Ndung'u vs Henkel Ltd. The Claimants opposed, pointing to demand and reply correspondence between November 2012 and January 2013, arguing they were not hopelessly out of time and invoking Article 159(1)(d) on substantive justice. The Respondent countered that a demand letter is not a claim and that limitation goes to the root of the action. Justice Hellen Wasilwa reproduced Section 90 and held its provisions are couched in mandatory terms, leaving no room for extension, as reinforced by the Court of Appeal in KAA vs Kisongochi. The Preliminary Objection was upheld and all four claims struck out for being filed out of time. No costs order is recorded.

Key legal issues

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01

Whether limitation under Section 90 of the Employment Act is absolute

Holding

Yes - the Court cannot extend the limitation period and claims filed outside three years of the cause of action must be struck out.

Reasoning

Section 90 requires that employment actions be instituted within three years of the act, neglect or default complained of. The provision is mandatory and contains no provision for extension. Relying on the Court of Appeal in KAA vs Kisongochi, the Court held it lacks jurisdiction to extend the period, distinguishing the Claimants' reliance on Article 159(1)(d) and on a demand letter, which is not a claim.

p. 2

Legal principles established

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  • Section 90 of the Employment Act is mandatory and does not permit extension of the three-year limitation period; a claim filed even one day late is time barred.

Court orders

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  1. 1.The Preliminary Objection is upheld in all four claims
  2. 2.The claims are struck out for being time barred

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenya, 2010Article 159(1)(d)
  • Constitution of Kenya, 2010Article 150

Cases cited (3)

  • Josephat Ndung'u vs Henkel LTD
    [2013] eKLR
  • Raila Odinga & 5 others vs IEBC & 3 others
  • KAA vs Shadrack Abraham Kisongochi
    Civil Appeal No. 6/2015 [2010] eKLR
Jurisdiction invoked
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, "Solomon Kasaine & 3 others v Yaars Bar & Restaurant Limited [2017] KEELRC 1874 (KLR)", Case Analysis (2017). Cause No. 739 of 2013 (with Causes 740, 741 and 742 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1874/eng@2017-01-24

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