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ELRCStruck OutNot stated in judgment· [2018] KEELRC 2280 (KLR)

Robert Njeru Ndatho v Inspector General of Police & 2 others [2018] KEELRC 2280 (KLR)

Employment and Labour Relations Court
23 February 2018
JAJ. N. Abuodha
729 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an employment claim filed eight years late, ruling that complaints to the Ombudsman or human rights bodies do not pause the three-year deadline.

What this practically means

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Executive summary

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The respondent raised a preliminary objection dated 4th March 2016 contending that the claimant's suit was time barred under section 90 of the Employment Act and an abuse of court process. The claimant, a former police officer employed around February 1981, was arrested, interdicted and charged in October 1999 with extortion; he was convicted and fined, but successfully appealed to the High Court. After a notice to show cause, he was removed from service by letter dated 6th February 2008, and his appeal to the Commissioner of Police was unsuccessful. The suit was filed on 21st January 2016, about eight years after termination. The claimant argued that the dispute had first been pursued before the Kenya National Commission on Human Rights and the Ombudsman, with the last communication on 1st October 2015, and relied on authorities holding that limitation in employment matters does not begin until conciliation is exhausted. The court held that section 90 bars employment claims filed more than three years after accrual of the cause of action, that it has no jurisdiction to extend a lapsed limitation period, and that only the conciliation process provided in the Labour Relations Act affects the limitation clock. Referral to independent commissions or other bodies cannot suspend limitation. The preliminary objection succeeded and the suit was struck out as statute barred. The judgment does not record a costs order.

Key legal issues

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01

Whether the suit offended section 90 of the Employment Act

Holding

Yes - the claim was filed about 8 years after termination on 6th February 2008, far beyond the 3-year limitation period.

Reasoning

Section 90 bars claims based on the Employment Act or a contract of employment filed more than three years after the cause of action accrues, with a one-year window for continuing injuries after cessation. The claimant did not dispute that his services were terminated on 6th February 2008, and the suit was filed on 21st January 2016, roughly eight years later. The court held it has no jurisdiction to extend a lapsed limitation period.

p. 1
02

Whether referral to the KNCHR and the Ombudsman suspended limitation

Holding

No - only the statutory conciliation process under the Labour Relations Act can affect the limitation clock, and referral to independent commissions is not such a process.

Reasoning

Counsel for the claimant relied on authorities holding that limitation does not begin until conciliation is exhausted. The court distinguished that principle: the mandatory conciliation process is the one in the Labour Relations Act, controlled by a conciliator who issues a conciliation certificate. Resort to independent commissions or other bodies is not provided for in that Act and cannot suspend limitation.

p. 2

Legal principles established

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  • Referral of an employment dispute to independent commissions such as the KNCHR or the Ombudsman does not suspend the running of the limitation period under section 90 of the Employment Act.
  • Only the statutory conciliation process under the Labour Relations Act, culminating in a conciliation certificate, affects the accrual of a cause of action for limitation purposes.
  • This Court lacks jurisdiction to extend a lapsed limitation period under section 90 of the Employment Act.

Court orders

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  1. 1.The respondent's preliminary objection dated 4th March 2016 succeeds
  2. 2.The suit is struck out for being statute barred
  3. 3.It is so ordered

Authorities

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Legislation

  • Employment Actsection 90
  • Penal Codesection 300/1(A)
  • Labour Relations Act

Cases cited (2)

  • Kenya Scientific Research International Technical and Allied Workers Union
  • Francis Muthiru Mu e Vs Rakesh Anand t/a Rauneq Restaurant
Jurisdiction invoked
Employment Act, section 90 (limitation of employment claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robert Njeru Ndatho v Inspector General of Police & 2 others [2018] KEELRC 2280 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2280/eng@2018-02-23

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