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ELRCStruck OutCause No 243 of 2017· [2018] KEELRC 2113 (KLR)

Julius Mwalimu Mitsanze v Exon Investment Limited [2018] KEELRC 2113 (KLR)

Employment and Labour Relations Court
3 May 2018
695 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 struck out a dismissal claim filed over three years late, confirming that the three-year clock starts on the termination date.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa determines a preliminary objection dated 25th April 2017 raised by the Respondent, contending that the Claimant's claim was statute barred under Section 90 of the Employment Act, 2007. The Respondent submitted that the Claimant was terminated on 14th March 2013 and the suit filed on 4th April 2017 was out of time, citing Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, where the Court of Appeal affirmed that this Court has no jurisdiction over employment claims filed out of time. The Claimant, conceding the 14th March 2013 termination date in his original Memorandum of Claim, amended his claim twice after the objection was raised, first pleading suspension on 14th March 2017 and then termination on 5th August 2017. The Court held the amendments were at best cosmetic and an attempt to escape the limitation dragnet: the demand letter of 21st February 2017 complained of unfair and unlawful dismissal, and paragraph 8 of the further amended claim showed the Claimant was turned away from the Respondent's premises as a stranger, which could not found the cause of action. Adopting the Drummond Jackson definition of a cause of action, the Court held the cause accrued on the cessation of employment on 14th March 2013. The suit filed on 4th April 2017 was therefore statute barred, the Court lacked jurisdiction, and the claim was struck out with no order for costs.

Key legal issues

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01

Accrual date of the cause of action in an employment termination claim

Holding

The cause of action accrued on the date of termination (14th March 2013), not on the later date the Claimant was turned away from the Respondent's premises (5th August 2016)

Reasoning

The Court adopted Drummond Jackson v Britain Medical Association's definition of a cause of action as an act on the part of the defendant giving the plaintiff his cause of complaint. The Claimant's complaint was the cessation of his employment, which occurred long before 5th August 2016; his being turned away as a stranger at the gate was a consequence, not the cause of action. The amendments to the Memorandum of Claim were cosmetic attempts to escape the limitation dragnet, contradicted by the demand letter and the pleadings themselves.

p. 2
02

Jurisdiction over claims filed out of time under Section 90 of the Employment Act

Holding

A suit filed more than three years after termination is statute barred and the Court lacks jurisdiction; the claim must be struck out

Reasoning

Section 90 of the Employment Act, 2007 requires civil actions arising out of the Act or a contract of service to be commenced within three years of the act, neglect or default complained of. Relying on Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, the Court affirmed it has no jurisdiction over employment claims filed out of time. Computing time from 14th March 2013, the suit filed on 4th April 2017 was out of time and the only available action was to strike it out.

p. 2
03

Effect of amendments to pleadings made after a limitation objection is raised

Holding

Amendments made to escape a limitation objection are cosmetic and cannot alter the accrual date of the cause of action

Reasoning

The Claimant amended his Memorandum of Claim twice after the preliminary objection was filed, first alleging suspension on 14th March 2017 and then termination on 5th August 2017. The Court held that even assuming the amendments were properly effected, their effect was at best cosmetic: the demand letter of 21st February 2017 complained of unfair and unlawful dismissal, and paragraph 8 of the further amended claim contradicted the pleaded termination date. The amendments could not revive a time-barred claim.

p. 1

Legal principles established

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  • A cause of action accrues from the act complained of, not from subsequent events such as being turned away from the premises
  • Where an employment claim is filed out of time under Section 90 of the Employment Act, the Court lacks jurisdiction and the only action available is to strike it out

Court orders

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  1. 1.The Claimant's claim is struck out with no order for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Criminal Procedure Code CAP 75 laws of KenyaSection 210

Cases cited (2)

  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Drummond Jackson v Britain Medical Association
    (197) 2 WLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90 limitation considered)

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, "Julius Mwalimu Mitsanze v Exon Investment Limited [2018] KEELRC 2113 (KLR)", Case Analysis (2018). Cause No 243 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2113/eng@2018-05-03

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