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ELRCDismissedNot stated in judgment (Cause number not given)· [2018] KEELRC 26 (KLR)

John Kipsang Mutai v Teachers Service Commission [2018] KEELRC 26 (KLR)

Employment and Labour Relations Court (Industrial Court)
11 October 2018
1,098 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it cannot extend the mandatory 3-year deadline for filing employment claims, dismissing a bid to sue 27 years after termination.

What this practically means

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Executive summary

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The claimant, formerly a teacher employed by the respondent from 1986 at Sigowet Primary School, moved the court ex parte by Notice of Motion dated 10th August 2018 under Articles 48, 159(2) and 160(1) of the Constitution, Order 50 Rule 6 of the Civil Procedure Rules, the Industrial Court Act and section 90 of the Employment Act Cap 226. He sought leave to file suit out of time and to have his draft memorandum of claim deemed filed. He explained that a road traffic accident on 18th January 1991 rendered him temporarily physically and mentally unstable, that he was interdicted without a fair hearing during hospitalisation, and that he could not appeal or file suit within the prescribed time; his separate damages suit against the insurer failed when Stallion Insurance went into receivership. The court held that an application of this nature is heard ex parte in the first instance, but that section 90 of the Employment Act, 2007 imposes a mandatory three-year limitation period for claims arising out of the Act or a contract of service, computed from the date of termination. Following Court of Appeal authority, extension of time is only available in tort claims under sections 27 and 28 of the Limitation of Actions Act, not in contract. The court found the Notice of Motion unsupported by any record, document or evidence and held that constitutional provisions cannot cure such lapses. With a delay of over 27 years, the court lacked jurisdiction to extend time. The application was dismissed with no orders on costs, it having been ex parte.

Key legal issues

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01

Whether the court has jurisdiction to extend time to file an employment claim out of time

Holding

The court lacks jurisdiction; section 90 of the Employment Act, 2007 fixes a mandatory 3-year limitation period for claims arising out of the Act or a contract of service, computed from the date the act complained of arose (here, the 1991 interdiction/termination).

Reasoning

Section 90 of the Employment Act, 2007 is in mandatory terms. The date of termination of the employment relationship is fundamental, and once 3 years elapse the court has no power to extend time. The Court of Appeal authorities confirm that extension is only possible in tort claims under sections 27 and 28 of the Limitation of Actions Act, not contract. The claimant's delay of over 27 years cannot be cured.

p. 2
02

Whether constitutional provisions (Articles 48, 159, 160) can cure procedural lapses and limitation bar

Holding

No — such lapses cannot be cured by invocation of articles 48, 159 or 160 of the Constitution.

Reasoning

The claimant invoked Articles 48 (access to justice), 159(2) (judicial authority) and 160(1) of the Constitution to justify the ex parte hearing and to overcome the delay. The court held that constitutional invocation cannot cure the absence of any supporting evidence or the statutory limitation bar, since jurisdiction cannot be conferred by consent or by constitutional rhetoric where a statute in mandatory terms forbids it.

p. 2
03

Whether the ex parte application was properly supported

Holding

The application was unsupported — the claimant attached no record, document or evidence, and the Notice of Motion was 'basically empty'.

Reasoning

Although an application of this nature is heard ex parte in the first instance, the applicant must still place material before the court demonstrating circumstances beyond his control. The claimant's affidavit asserted a road accident and mental incapacity but attached no records. The court was therefore unable to exercise any discretion in his favour even assuming one existed.

p. 2

Legal principles established

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  • A complaint based on the Employment Act, 2007 or a contract of service must be lodged within 3 years; after 3 years the court has no jurisdiction or power to extend the statutory time
  • The limitation period in employment/contract claims cannot be extended; extension is only available in tort claims under sections 27 and 28 of the Limitation of Actions Act

Court orders

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  1. 1.The application dated 10th August, 2018 is dismissed
  2. 2.No orders on costs (ex parte application)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 159(2), 160(1)
  • Civil Procedure RulesOrder 50 Rule 6
  • Industrial Court ActSections 12(2), 20(1), 36
  • Employment Act Cap 226Section 90
  • Employment and Labour Relations Court Act, 2011Not specified
  • Employment Act, 2007Section 90
  • Limitation of Actions Act (Cap. 22)Sections 4(1), 27, 28

Cases cited (5)

  • Tabitha K Rutere versus Kenyatta University
    Cause No. 89 of 2018
  • Willis Onditi Odhiambo v Gateway Insurance Co. Ltd
    (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
Articles 48, 159(2) and 160(1) of the Constitution; section 12(2), 20(1) and 36 of the Industrial Court Act; section 90 of the Employment Act Cap 226; Order 50 Rule 6 of the Civil Procedure Rules

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, "John Kipsang Mutai v Teachers Service Commission [2018] KEELRC 26 (KLR)", Case Analysis (2018). Not stated in judgment (Cause number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/26/eng@2018-10-11

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