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ELRCStruck OutNot stated in judgment· [2018] KEELRC 1535 (KLR)

Wilson Nyabuto Areri v Postal Corporation of Kenya [2018] KEELRC 1535 (KLR)

Employment and Labour Relations Court
13 July 2018
MOMaureen Onyango
829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent, Postal Corporation of Kenya, filed a notice of preliminary objection dated 17th November 2016 seeking the striking out of the claimant Wilson Nyabuti's claim on the grounds that it was time barred under Section 90 of the Employment Act and was otherwise defective. The claimant had been employed by the respondent from about 10th July 1992 and dismissed on 16th March 2010, receiving the dismissal letter in December 2010. He pursued appeals internally through the Corporation and the Permanent Secretary without success, and deposed that he was unaware he could bring the matter to court, relying on Article 159 of the Constitution. The preliminary objection was heard on 10th May 2018 in the claimant's absence. Counsel for the respondent submitted that the cause of action arose on 16th March 2010 and the suit was filed on 8th October 2015, some two years and six months beyond the three-year limitation period without leave. The court held that Section 90 of the Employment Act is explicit that claims arising out of the Act or a contract of service must be commenced within three years. It held that limitation is not a procedural technicality curable by Article 159 but substantive law affecting jurisdiction, so a court has no jurisdiction over a statute-barred claim and must down its tools. Following the cited authorities, including Divecon v Samani on the absence of discretion to extend time in contract actions, the court struck out the claim as statute barred with no orders for costs.

Key legal issues

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01

Whether the claim filed out of time can be saved by Article 159 of the Constitution (procedural technicalities)

Holding

No - limitation is substantive law going to jurisdiction, not a procedural technicality, so Article 159 cannot cure a statute-barred claim

Reasoning

Section 90 of the Employment Act mandates that no civil action arising out of the Act or a contract of service shall be instituted unless commenced within three years. The claimant's cause of action arose on 16th March 2010 when he was dismissed, and the suit was filed on 8th October 2015, over two years beyond the limitation period. Relying on precedent, the court held limitation is substantive and affects jurisdiction; without jurisdiction the court must down its tools.

p. 2
02

Whether the court has jurisdiction over a claim filed two and a half years out of time without leave

Holding

The court has no jurisdiction to entertain a statute-barred claim; the claim must be struck out

Reasoning

The court invoked the settled principle that jurisdiction is derived from the Constitution, statute and judicial precedent, and that without jurisdiction a court must down its tools. Citing Divecon v Samani, the Court of Appeal held that no court may entertain a contract action brought out of time or any application to extend time. The preliminary objection therefore succeeded and the claim was struck out with no order as to costs.

p. 2

Legal principles established

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  • Limitation under Section 90 of the Employment Act is substantive law that affects jurisdiction; a court has no jurisdiction to hear a statute-barred claim and cannot extend time under the Limitation of Actions Act for contract-based actions

Court orders

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  1. 1.The claim is struck out for being statute barred with no orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of KenyaArticle 159

Cases cited (7)

  • James Muriithi Ngotho v Judicial Service Commission
    [2012] eKLR
  • Nyanamba O. Steve v Teachers Service Commission
    [2016] eKLR
  • Owners of Vessel Lillian 'S' v Caltex Oil (K) Ltd
  • Divecon v Samani
  • E. Torgbor v Ladislaus Odongo Ojuok
  • In Re The Matter of the Interim Independent Electoral Commission
    S.C. Constitutional Application No. 2 of 2011 [2011] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    S.C Application No. 2 of 2012 [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, Section 90 (limitation)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Wilson Nyabuto Areri v Postal Corporation of Kenya [2018] KEELRC 1535 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1535/eng@2018-07-13

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