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ELRCStruck OutCause No 864 of 2013· [2018] KEELRC 2155 (KLR)

James Momanyi Kabiri v Hako Industries Limited [2018] KEELRC 2155 (KLR)

Employment and Labour Relations Court
13 April 2018
MOMaureen Onyango
1,366 words in judgment
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The bottom line

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A Kenyan employment claim filed even five months late was struck out because courts cannot hear claims filed after the three-year limit.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) determined two competing applications in an unfair dismissal claim. The respondent applied to dismiss the claim as statute barred under Section 90 of the Employment Act, deposing through its HR Manager, Caroline Kiambi, that the claimant was terminated on 27th January 2010 but filed suit on 7th June 2013, roughly five months outside the three-year limitation window. The claimant, James Momanyi Kabiri, applied to strike out the limitation defence, arguing that the dispute had been referred to the District Labour Officer for conciliation in February 2010 and that limitation should not run until conciliation concluded. The claimant cited two authorities (Kenya Plantation and Agricultural Workers Union v Mununga Leaf and Lenoida Makokha v Munene Estate Limited) but supplied no copies or citations, so the court could not consider them. Relying on Divecon v Samani, Kenya Airports Authority v Shadrack Abraham Kisongochi, Owners of Vessel Lillian 'S' v Caltex Oil (K) Ltd and Supreme Court authority that a court cannot confer jurisdiction on itself, the court held it has no jurisdiction over time-barred claims and that the conciliation argument had no judicial or statutory support. The respondent's application succeeded, the claimant's failed, and the claim was struck out with no orders for costs.

Key legal issues

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01

Whether the claim was filed outside the three-year limitation period in Section 90 of the Employment Act

Holding

Yes - the claim was filed about five months after the limitation period lapsed on 26th January 2013

Reasoning

The claimant was dismissed on 27th January 2010 and filed suit on 7th June 2013. Section 90 requires employment claims to be commenced within three years of the act complained of. The three years lapsed on 26th January 2013, making the claim statute barred and robbing the court of jurisdiction.

p. 3
02

Whether conciliation before the District Labour Officer suspends the running of the limitation period

Holding

No - the contention has no judicial or statutory support

Reasoning

The claimant argued that the cause of action does not accrue until conciliation concludes. The court found no statutory provision or judicial authority supporting suspension of limitation during conciliation, noting also that the two authorities cited by the claimant were never supplied to the court. The binding Court of Appeal decisions established that courts cannot entertain time-barred actions.

p. 3

Legal principles established

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  • A court has no jurisdiction to hear a claim that is statute barred
  • Where there is no jurisdiction the court must down its tools
  • The limitation period for employment claims is three years under Section 90 of the Employment Act

Court orders

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  1. 1.The respondent's application dated 4th September 2015 succeeds
  2. 2.The claimant's application dated 7th September 2015 fails
  3. 3.The claim herein is struck out
  4. 4.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap. 22)Section 4(1)

Cases cited (11)

  • Kenya Plantation and Agricultural Workers Union v Mununga Leaf
    Cause No. 91 of 2012
  • Lenoida Makokha & 3 others v Munene Estate Limited
    Cause 1024 of 2010
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Fred Mudave Gogo v G4S Security Services (K) Ltd
  • James Muriithi Ngotho v Judicial Service Commission
    [2012] eKLR
  • Nyanamba O. Steve v Teachers Service Commission
    [2016] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
  • Bata Shoe Company (K) Limited v Laban Chema Libabu
  • Kenya Airports Authority v Shadrack Abraham Kisongochi
    Civil Appeal No.6 of 2015
  • Divecon v Samani
  • Owners of Vessel Lillian 'S' v Caltex Oil (K) Ltd
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Section 90 of the Employment Act (limitation); the court held it lacks jurisdiction over time-barred claims

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, "James Momanyi Kabiri v Hako Industries Limited [2018] KEELRC 2155 (KLR)", Case Analysis (2018). Cause No 864 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2155/eng@2018-04-13

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