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ELRCDismissedCause (number not stated in judgment; Issue in Dispute: Wrongful dismissal and refusal to pay terminal dues)· [2018] KEELRC 677 (KLR)

Jesca Aseyo Evayo v Premier Bag & Cordage Limited [2018] KEELRC 677 (KLR)

Employment and Labour Relations Court

9 November 2018

RSRadido Stephen

514 words in judgment

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The bottom line

Waiting too long to sue over a contract-based dismissal kills the claim—Kenyan courts cannot hear contract cases filed more than six years late.

What this practically means

Executive summary

The claimant, Jesca Aseyo Evayo, sued Premier Bag & Cordage Ltd in May 2014 for wrongful dismissal and refusal to pay terminal dues, pleading that she was verbally notified of the termination of her contract on or around 4 January 1999. The respondent, in its Statement of Defence, contended that the causes of action were statute barred under section 4 of the Limitation of Actions Act. The cause was heard on 23 April 2018 (claimant testified) and 18 July 2018 (respondent's Human Resources Manager testified). The court first dealt with the preliminary question of limitation, which it treated as going to jurisdiction. It held that the applicable limitation period for contract causes of action accruing in 1999 was six years under section 4 of the Limitation of Actions Act, so the claimant ought to have instituted proceedings by about 3 January 2005. The Statement of Claim was filed on 30 May 2014, some 15 years after accrual. Applying the binding Court of Appeal authority in Divecon v Samani, the court held that no one may bring, and no court may entertain, an action founded on contract after six years from accrual, and that Part III of the Act (extension provisions) does not apply to contract actions. The cause of action was found statute barred and, it being unnecessary to examine any other questions, the cause was dismissed with no order as to costs. Judgment was delivered in Nairobi on 9 November 2018.

Key legal issues

Limitation of actions in employment claims founded on contract

Holding

The cause of action, having accrued on or around 4 January 1999, was statute barred when the Statement of Claim was filed on 30 May 2014, some 15 years later; the Court lacked power to entertain it.

Reasoning

Section 4 of the Limitation of Actions Act prescribed a six-year limitation period for contract causes of action at the time of accrual in 1999. The claimant ought to have filed by about 3 January 2005. Relying on the binding Court of Appeal decision in Divecon v Samani, no court may entertain a contract action brought after six years, and Part III of the Act permitting extension does not apply to contract actions. The claim, filed in 2014, was therefore time barred.

p. 1

Legal principles established

No action founded on contract may be brought, and no court may entertain such an action, more than six years after the cause of action accrued; the extension provisions in Part III of the Limitation of Actions Act do not apply to contract actions.

Court orders

1.The Cause is dismissed with no order as to costs

Authorities

Legislation

Limitation of Actions Actsection 4 / section 4(1)

Cases cited (1)

Divecon v Samani
(1995-1998) EA 48

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over a claim of wrongful dismissal and refusal to pay terminal dues

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jesca Aseyo Evayo v Premier Bag & Cordage Limited [2018] KEELRC 677 (KLR)", Case Analysis (2018). Cause (number not stated in judgment; Issue in Dispute: Wrongful dismissal and refusal to pay terminal dues). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/677/eng@2018-11-09

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