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ELRCDismissedNot stated in judgment· [2018] KEELRC 19 (KLR)

Tabitha K Rutere v Kenyatta University [2018] KEELRC 19 (KLR)

Employment and Labour Relations Court of Kenya
7 June 2018
MMM. Mbaru
1,891 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 dismissed a claim filed nearly seven years after termination because employment claims must be filed within three years, and that deadline cannot be extended.

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 4th April, 2018 seeking reinstatement, elimination of discrimination, and payment of withheld salaries, allowances and benefits following termination of her employment. She had been employed by the respondent from 22nd April, 1991, was promoted over time, but in September 2011 became unwell with acute depression. She tendered a resignation letter on 21st November, 2011 citing mistreatment; the respondent's psychiatrist recommended that the resignation be ignored, but on 1st December, 2011 her employment was terminated on the ground that she had resigned and could not resume duty. She was later re-engaged on a fixed-term contract from 31st March, 2017 which lapsed without renewal. The respondent raised a Notice of Objection under section 90 of the Employment Act, 2007, contending the suit was statute-barred. The court examined the nature of jurisdiction, citing the locus classicus Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd and Seven Seas Technologies Ltd v Eric Chege, and held that section 90 of the Employment Act, 2007 mandatorily requires employment claims to be filed within three years. Since the 2011 termination was the basis of the claims, filed nearly seven years later, the court had no jurisdiction and no power to extend time, following Beatrice Kahai Adagala v Postal Corporation of Kenya. The suit was dismissed with each party bearing own costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over time-barred employment claims

Holding

Section 90 of the Employment Act, 2007 is mandatory; claims filed more than three years after termination are statute-barred and the court lacks jurisdiction to entertain them or extend time

Reasoning

Jurisdiction derives from Article 162(2)(a) of the Constitution, the Employment and Labour Relations Court Act, 2011 (section 12) and the Employment Act, 2007. Section 90 imposes a three-year limitation for claims arising from employment or contract of service. Termination was on 1st December, 2011; the Memorandum of Claim was filed on 4th April, 2018, well beyond three years. Following Beatrice Kahai Adagala v Postal Corporation of Kenya, the limitation period in contract claims cannot be extended. The court therefore had no authority to hear the claims.

p. 3
02

Whether the claimant had a cause of action

Holding

Any cause of action arising from the 2011 termination expired with the limitation period; no live cause of action remained before the court

Reasoning

The claimant was employed in 1991, became unwell in September 2011, resigned by letter on 21st November, 2011, and her employment was terminated on 1st December, 2011 on the ground of resignation. She was later engaged on a fixed-term contract from 31st March, 2017 which lapsed without renewal. The claims for reinstatement, withheld dues, allowances and benefits related to the 2011 termination and were outside the three-year window, so no enforceable cause of action existed for those heads.

p. 3

Legal principles established

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  • A claim based on a contract of service must be commenced within three years under section 90 of the Employment Act, 2007, and after three years the court has no jurisdiction and no power to extend time
  • Jurisdiction is everything; a court must down tools the moment it finds it lacks jurisdiction

Court orders

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  1. 1.The suit is dismissed as time barred
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 49
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Limitation of Actions Actsections 27 and 28
  • Constitution of Kenya, 2010Article 162(2) and (3)
  • Employment and Labour Relations Court Act, 2011section 12

Cases cited (5)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Seven Seas Technologies Limited versus Eric Chege
    [2014] eKLR
  • Beatrice Kahai Adagala versus Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited -vs- Samani
    [1995-1998] 1 EA P.48
  • Josephat Ndirangu - vs - Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Article 162(2) and (3) of the Constitution, 2010; Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007, section 90

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Tabitha K Rutere v Kenyatta University [2018] KEELRC 19 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/19/eng@2018-06-07

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