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ELRCStruck OutNot stated in judgment· [2018] KEELRC 1286 (KLR)

Rashid Duane Ibrahim v Kenya Wildlife Service [2018] KEELRC 1286 (KLR)

Employment and Labour Relations Court
10 August 2018
MOMaureen Onyango
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a former Kenya Wildlife Service employee's disability and retirement-benefits claim because he filed suit more than three years late without permission.

What this practically means

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Executive summary

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The claimant, an employee injured on 11th March 2009 in the course of employment and subsequently retired on medical grounds, sought declarations that his early retirement on the basis of disability violated Article 27(4) of the Constitution, Section 15 of the Persons with Disabilities Act, Section 5(3)(a) of the Employment Act, and Articles 41 and 54(1); an order for recalculation of retirement benefits on the basis of a retirement age of 60 years; a refund of Kshs.500,000 deducted from a Group Personal Accident claim; arrears of pay; compensation and special damages. The respondent countered that the claimant had applied for and was granted retirement on medical grounds, was paid his benefits under NSSF and its superannuation scheme, and raised a preliminary objection that the court lacked jurisdiction over work injury compensation vested in magistrates' courts and over constitutional declarations. At hearing before Mbaru J on 20th December 2017, the court adjourned and directed parties to address it on Section 90 of the Employment Act. The claimant explained the five-year delay by his physical challenges, fitting of a prosthesis and psychological trauma; the respondent maintained the suit was filed outside the three-year limitation period without leave. The court held that although the claimant gave reasons for the delay, he never sought leave to file out of time, so the suit was statute barred and struck out. The court expressly declined to determine the respondent's jurisdictional objections on work injury claims. No costs order is recorded.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The claim filed on 22nd May 2014 in respect of an injury of 11th March 2009 was outside the three-year limitation period and no leave to file out of time was sought, so the claim is statute barred and struck out

Reasoning

The court noted the claimant did not deny filing out of time and gave reasons for the delay, including physical challenges and psychological trauma after losing a limb. However, the claimant never sought leave before filing the suit out of time. The court held that without such leave it had no jurisdiction over the time-barred claim. The court declined to rule on the jurisdictional objection regarding work injury claims as the directions had been confined to Section 90.

p. 2

Legal principles established

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  • A suit filed outside the three-year limitation period in Section 90 of the Employment Act without leave deprives the court of jurisdiction and must be struck out as statute barred

Court orders

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  1. 1.The claim is struck out for being statute barred

Authorities

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Legislation

  • Constitution of KenyaArticle 27(4)
  • Constitution of KenyaArticle 41(1) and (2)(b)
  • Constitution of KenyaArticle 54(1)
  • Employment ActSection 5(3)(a)
  • Employment ActSection 90
  • Persons with Disabilities ActSection 15 (including 15(6))
  • Work Injury Benefits Act 2007Not specified

Cases cited (4)

  • LYDIA PAMELA NYAGALA -V- ROYAL MEDIA SERVICES LIMITED
    [2016]
  • GATHONI VERSUS KENYA CO-OPERATIVE CREAMERIES LIMITED
    Civil Application No. 122 of 1981
  • MARIA MACHOCO -V- TOTAL KENYA LIMITED
  • DIVECON LIMITED -V- SAMANI
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, Section 90 (limitation) - the court directed parties to address it on Section 90 of the Employment Act

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, "Rashid Duane Ibrahim v Kenya Wildlife Service [2018] KEELRC 1286 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1286/eng@2018-08-10

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