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ELRCDismissedNot stated in the judgment (Notice of Motion dated 21st September, 2017)· [2018] KEELRC 2536 (KLR)

Samson Wanyoike Kimani v Bliss Flora Limited [2018] KEELRC 2536 (KLR)

Employment and Labour Relations Court
15 May 2018
MMM. Mbaru
1,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a former employee of the respondent, applied by Notice of Motion dated 21st September 2017 seeking leave to file suit out of time. He had been charged with stealing a motor vehicle belonging to the respondent in Criminal Case No. 209 of 2013 and was released on bond on 13th February 2013, when he reported back to work but was advised to await the outcome of the criminal case. He was acquitted on 2nd December 2015, but the respondent refused to reinstate him or pay terminal dues, and no termination letter was issued. He argued that time had not run because he had no termination letter and expected reinstatement. The respondent opposed, contending that under section 90 of the Employment Act, 2007 the court has no jurisdiction to extend time and that time ran from 13th February 2013, the last day at work. The court framed a single issue: whether it has jurisdiction or discretion to extend time. Relying on Divecon v Samani, Maria Machocho v Total (K) and Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held that section 90 is in mandatory terms and that the limitation period in contract-based employment claims cannot be extended; extension is available only in tort under sections 27 and 28 of the Limitation of Actions Act. Time ran from the claimant's last day at work, 13th February 2013. The application was accordingly not granted, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the court has jurisdiction or discretion to extend time for filing an employment claim beyond the 3-year period under section 90 of the Employment Act

Holding

The court has no such jurisdiction or discretion; the application was dismissed

Reasoning

Section 90 of the Employment Act is in mandatory terms, requiring employment contract claims to be filed within 3 years. Relying on Divecon v Samani and Beatrice Kahai Adagala, the court held that the limitation period in contract claims cannot be extended; extension is available only in tort claims under sections 27 and 28 of the Limitation of Actions Act. Time ran from 13th February 2013, the last day at work, and the application filed on 27th September 2017 was out of time.

p. 2
02

When the cause of action accrues in an employment claim where criminal proceedings are ongoing

Holding

The cause of action arises from the date employment is terminated; the claimant's last day at work was 13th February 2013, when he was advised to await the outcome of the criminal case

Reasoning

The court found as a fact that the claimant reported back to work on 13th February 2013 after release on bond but was advised to await the outcome of the criminal proceedings. Following Attorney General v Andrew Maina Githinji, the cause of action in employment claims arises from the date of termination notwithstanding ongoing criminal proceedings. Time therefore started running on 13th February 2013 and had lapsed by the date of the application.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is in mandatory terms: a claim based on a contract of employment must be filed within 3 years, and the court has no jurisdiction or discretion to extend time or grant leave to file such a claim out of time
  • The limitation period in contract claims can only be extended in claims founded on tort and only under sections 27 and 28 of the Limitation of Actions Act
  • In employment claims, the cause of action arises from the date employment is terminated, even where criminal proceedings are ongoing

Court orders

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  1. 1.The application for leave to file suit out of time is not granted; the court has no jurisdiction or discretion to extend time or grant leave to file a claim based on employment contract out of time
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Limitation of Actions Actsection 4(1), sections 27 and 28
  • Employment Act, 2007section 90
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (6)

  • Attorney General & Another versus Andrew Maina Githinji & another
    [2016] eKLR
  • Peter Nyamai & 7 others versus V.M. Clarke Limited, Cause No.78 of 2012
  • Divecon versus Samani
    [1995-1998] 1 EA 48
  • Maria Machocho versus Total (K) Industrial Cause No. 2 of 2012
  • Beatrice Kahai Adagala versus Postal Corporation of Kenya
    [2015] eKLR
  • Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Article 159(2) of the Constitution, 2010; section 90 of the Employment Act, 2007; sections 1A, 1B and 3A of the Civil Procedure Act; section 4(1) of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Samson Wanyoike Kimani v Bliss Flora Limited [2018] KEELRC 2536 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 21st September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2536/eng@2018-05-15

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