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ELRCStruck OutCause No 51 of 2016· [2018] KEELRC 2032 (KLR)

Daniel Kiptoo Kaakima v East African Portland Cement Company Limited [2018] KEELRC 2032 (KLR)

Employment and Labour Relations Court
3 May 2018
MOMAUREEN ONYANGOMNMATHEWS NDERI NDUMA
1,182 words in judgment
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The bottom line

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Kenya's Employment Court struck out a unfair dismissal claim filed just over three years late, confirming the three-year deadline is strict.

What this practically means

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Executive summary

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In this first-instance employment dispute, the respondent filed a defence on 25th May 2016 raising a preliminary objection that the claimant's claim for wrongful and unfair dismissal was time barred. The respondent relied on Section 90 of the Employment Act, which bars civil actions arising out of the Act or a contract of service unless commenced within three years of the act, neglect or default complained of. The claimant's employment was terminated on 20th November 2012, and the memorandum of claim was filed on 22nd February 2016 - some three years and three months later. The respondent, citing Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and several industrial court authorities, submitted that limitation is a point of law properly raised by preliminary objection, that Section 90 provides a three-year limitation period without exception, and that the court has neither statutory jurisdiction nor discretion to extend time. The claimant was granted several opportunities to file submissions in response but failed to do so, and the court, at the respondent's request, disposed of the objection without the claimant's response. Relying on the Court of Appeal decision in Divecon v Samani to the effect that no court may entertain a time-barred matter, the court held that it lacked jurisdiction. The preliminary objection succeeded and the claimant's case was struck out as statute barred. The judgment is silent on costs in its final orders.

Key legal issues

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01

Whether the claim is time barred under Section 90 of the Employment Act

Holding

Yes - the claim filed on 22nd February 2016, some 3 years and 3 months after termination on 20th November 2012, is statute barred and the court lacks jurisdiction

Reasoning

The claimant pleaded wrongful and unfair dismissal and appended the termination letter dated 20th November 2012. The memorandum of claim was filed on 22nd February 2016, beyond the three-year limitation period prescribed by Section 90 of the Employment Act. Following Divecon v Samani, a time-barred matter cannot be entertained for want of jurisdiction. The claimant did not contest the preliminary objection, and the objection was disposed of without the claimant's response. The court struck out the claim as statute barred.

p. 2
02

Whether limitation may be raised as a preliminary objection

Holding

Yes - limitation is a point of law properly raised by preliminary objection, per Mukisa Biscuits and the industrial court authorities relied on by the respondent

Reasoning

The respondent relied on Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd, where Law J.A. identified a plea of limitation as an example of a preliminary objection consisting of a point of law which, if argued as a preliminary point, may dispose of the suit. The respondent also relied on Peter Musembi v Barclays Bank, holding that limitation is not a technicality curable by invoking the Constitution, and Rama Krishnarao v Saj Ceramics, holding Section 90 provides a three-year limitation period without exception.

p. 2

Legal principles established

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  • No civil action based on the Employment Act or a contract of service shall be instituted unless commenced within three years next after the act, neglect or default complained of
  • A court lacks jurisdiction to entertain a matter that is time barred by limitation

Court orders

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  1. 1.The preliminary objection succeeds
  2. 2.The claimant's case is struck out for having been filed after the lapse of the limitation period and therefore being statute barred

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (7)

  • Mukisa Biscuits Manufacturing Co. Ltd. -v- West End Distributors Ltd.
    [1969] E.A. 696
  • Tailors and Textile Workers Union -Vs- Moi University and Rivatex E.A. Ltd
    Industrial Court Cause No. 1981 of 2011 as consolidated with Industrial Court Cause No. 1996 of 2011
  • Peter Musembi -Vs- Barclays Bank of Kenya Limited
    Industrial Court Cause No. 1686 of 2011
  • Aggrey Amugune Akwiyanga -Vs- Inderpal Singh (K) Limited
    Nairobi Civil Appeal No. 367 of 2007 (eKLR)
  • Gathoni -Vs- Kenya Co-operative Creameries Limited
    [1982] 2 KLR 104
  • Rama Krishnarao -Vs- Saj Ceramics Limited
    Industrial Case No. 2138 of 2012
  • Divecon -Vs- Samani
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 (Section 90); the court found its jurisdiction barred by limitation

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, "Daniel Kiptoo Kaakima v East African Portland Cement Company Limited [2018] KEELRC 2032 (KLR)", Case Analysis (2018). Cause No 51 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2032/eng@2018-05-03

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