Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in the judgment (memorandum of claim dated 23rd September 2016)· [2018] KEELRC 2122 (KLR)

Patrick Ogutu Oduor v Fashion “99” Limited [2018] KEELRC 2122 (KLR)

Employment and Labour Relations Court
20 April 2018
MOMAUREEN ONYANGO
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment claim filed ten years after dismissal was struck out because courts cannot hear cases filed after the legal deadline.

What this practically means

#

Executive summary

#
The claimant, Patrick Ogutu Oduor, filed a memorandum of claim on 23rd September 2016 alleging that he worked for the respondent from 1997 until his unlawful dismissal on 26th September 2006. The respondent filed a notice of preliminary objection on 21st October 2016 arguing that the claim was filed ten years after the cause of action accrued, contrary to Section 90 of the Employment Act, and that the defamation and unlawful confinement claims were time barred under the Limitation of Actions Act, and that the suit was an abuse of process. In written submissions, the respondent relied on Mukisa Biscuits on the nature of preliminary objections, Divecon v Samani on the inapplicability of extension provisions to contract claims, and Gathoni v Kenya Co-operative Creameries on the policy of limitation. The claimant countered that he had obtained leave from the Milimani Chief Magistrate's Court in Misc. Application No. 412 of 2016 to file suit out of time. The court held that limitation is substantive legislation affecting jurisdiction, so a statute-barred claim cannot be entertained; that Sections 27 and 28 of the Limitation of Actions Act permit extension only for tort actions in specified circumstances and not for contract; and that the Magistrate's leave was granted per incuriam and cannot bind a superior court. The preliminary objection succeeded and the claim was struck out as statute barred, with the court lacking jurisdiction to entertain it. Judgment was delivered at Nairobi on 20th April 2018 by Maureen Onyango, J.

Key legal issues

#
01

Whether the claim, filed 10 years after termination, is time barred

Holding

Yes; the cause of action in employment accrued on the date of termination and the claim filed on 23rd September 2016 was statute barred

Reasoning

The court found no dispute that dismissal occurred on 26th September 2006 and the claim was filed on 23rd September 2016. Relying on Divecon v Samani, Part III of the Limitation of Actions Act (extension provisions) does not apply to actions founded on contract, so no extension was possible for the contractual claim; defamation claims were barred under Section 4(2). Limitation affects jurisdiction.

p. 2
02

Validity of the leave granted by the Chief Magistrate's Court to file out of time

Holding

Invalid; the order was made per incuriam and a Magistrate's leave cannot support filing in a superior court

Reasoning

Sections 27 and 28 of the Limitation of Actions Act permit extension only in specified circumstances and only for tort claims, not contract. The Magistrate's order conflicted with these provisions and with Court of Appeal and Supreme Court precedent on jurisdiction, and was therefore per incuriam. Moreover, such orders do not bind a superior court.

p. 3

Legal principles established

#
  • A plea of limitation goes to the jurisdiction of the court and may be raised as a preliminary objection
  • Leave to file suit out of time granted by a Magistrate's court does not bind a superior court

Court orders

#
  1. 1.The preliminary objection succeeds and the claim is struck off on grounds that it is statute barred and the court lacks jurisdiction to entertain it

Authorities

#

Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSections 4(1), 4(2), 27, 28
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 37 Rule 6(1)

Cases cited (12)

  • Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors Limited
    (1979) EA 696
  • BENJAMIN WACHIRA NDIITHI -VS- PUBLIC SERVICE COMMISSION & ANOTHER
  • HILARION MWABOLO -VS- KENYA COMMERCIAL BANK
  • DIVECON -VS- SAMANI
    [1995-1998] EA 48
  • GATHONI -VS- KENYA CO-OPERATIVE CREAMERIES LIMITED
    [1982] KLR 104
  • Attorney General & Another -vs- Andrew Maina Githinji & Another
    [2016] eKLR
  • James Muriithi Ngotho -vs- Judicial Service Commission
    [2012] eKLR
  • Nyanamba O. Steve -vs- Teachers Service Commission
    [2016] eKLR
  • Owners of Vessel Lillian 'S' -vs- Caltex Oil (K) Ltd
  • E.Torgbor -vs- 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 -vs- Kenya Commercial Bank Limited & 2 Others
    S.C Application No. 2 of 2012 [2012] eKLR
Jurisdiction invoked
Section 90 of the Employment Act; Sections 4(1), 4(2), 27 and 28 of the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Ogutu Oduor v Fashion “99” Limited [2018] KEELRC 2122 (KLR)", Case Analysis (2018). Not stated in the judgment (memorandum of claim dated 23rd September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2122/eng@2018-04-20

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