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ELRCDismissedMiscellaneous Application No. 83 of 2017· [2018] KEELRC 1930 (KLR)

David Mwoni Kiema v Kenya Defence Forces & 2 others [2018] KEELRC 1930 (KLR)

Employment and Labour Relations Court
27 April 2018
HWHellen S. Wasilwa
1,179 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 over four years after dismissal, confirming it cannot extend the strict three-year filing deadline for employment disputes.

What this practically means

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Executive summary

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The Claimant, David Mwoni Kiema, moved the Employment and Labour Relations Court at Nairobi by a Notice of Motion dated 18th July 2017 seeking leave to file suit out of time against the Kenya Defence Forces, the Principal Secretary Ministry of Defence and the Attorney General, and an order deeming his Draft Memorandum of Claim duly filed. He relied on Articles 48 and 159(2) of the Constitution, Order 37 Rule 6(2) and Order 51 Rule 6 of the Civil Procedure Rules, provisions of the Employment and Labour Relations Act and Section 90 of the Employment Act, asserting that his delay was occasioned by illness. The Respondents opposed the application, contending that the Claimant was terminated on 19th July 2013 and filed his application about four years and 11 days later, some twelve months after the three-year limitation period lapsed; that no medical records substantiated his claimed incapacity; and that no continuing injury was demonstrated. The Respondents also noted that the Claimant had withdrawn cause number 1500 of 2016 without serving them. Justice Hellen S. Wasilwa considered Section 90 of the Employment Act, which limits employment claims to three years, or twelve months from the cessation of a continuing injury. She relied on the Court of Appeal decision in KAA vs Shadrack Abraham Kisongochi holding that the ELRC lacks jurisdiction to extend time in employment and labour relations matters, and found her hands tied. The application and the entire suit were dismissed for being time barred on 27th April 2018.

Key legal issues

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01

Limitation period for employment claims under Section 90 of the Employment Act

Holding

The Claimant, terminated on 19th July 2013 and moving the Court on 18th July 2017, was out of the three-year limitation window and demonstrated no continuing injury

Reasoning

The Court applied Section 90 of the Employment Act, which requires suits arising from employment or contracts of service to be commenced within three years of the act complained of, or within twelve months of cessation of a continuing injury. The Respondents submitted that about four years and 11 days had lapsed. The Court found no medical records supporting the Claimant's claim of illness rendering him bedridden and unable to file.

p. 3
02

Jurisdiction of the ELRC to extend time in employment matters

Holding

The Court held that its hands were tied, following the Court of Appeal decision in KAA vs Shadrack Abraham Kisongochi that the ELRC lacks jurisdiction to extend time in such matters

Reasoning

Relying on the Court of Appeal decision, the Court concluded that even if the Applicant had a valid reason for the delay, the Court could not extend time in employment and labour relations matters. It therefore dismissed both the application and the entire suit for being time barred.

p. 3

Legal principles established

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  • An employee must file a claim under the Employment Act within three years of the act, neglect or default complained of, or within twelve months of cessation of a continuing injury or damage
  • The Employment and Labour Relations Court does not have jurisdiction to extend time in employment and labour relations matters

Court orders

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  1. 1.The application dated 18th July 2017 is dismissed
  2. 2.The entire suit is dismissed for being time barred

Authorities

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Legislation

  • Constitution of Kenya 2010Article 48
  • Constitution of Kenya 2010Article 159(2)
  • Constitution of Kenya 2010Article 160(1)
  • Civil Procedure Rules 2010Order 37 Rule 6(2)
  • Civil Procedure Rules 2010Order 51 Rule 6
  • Employment and Labour Relations ActSection 12(2)
  • Employment and Labour Relations ActSection 20(1)
  • Employment and Labour Relations ActSection 36
  • Employment Act 2007Section 90
  • Limitation of Actions ActSection 4(1)

Cases cited (3)

  • Edward Kamau and another vs Hannah Mukui Gichuki and another
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir vs IEBC and 7 others, SC Application No. 16 of 2014
  • KAA vs Shadrack Abraham Kisongochi Appeal No. 6/2015 (Kisumu)
Jurisdiction invoked
Articles 48, 159(2) of the Constitution of Kenya 2010; Order 37 Rule 6(2) and Order 51 Rule 6 of the Civil Procedure Rules 2010; Sections 12(2), 20(1) and 36 of the Employment and Labour Relations Act; 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, "David Mwoni Kiema v Kenya Defence Forces & 2 others [2018] KEELRC 1930 (KLR)", Case Analysis (2018). Miscellaneous Application No. 83 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1930/eng@2018-04-27

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