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ELRCDismissedNot stated in the extract (ELRC appeal from Principal Magistrate Nyando)· [2019] KEELRC 388 (KLR)

David Miregwa Nyanchongi v Chemelil Sugar Company Limited [2019] KEELRC 388 (KLR)

Employment and Labour Relations Court
4 November 2019
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Kisumu dismissed an appeal because the worker filed a workplace injury claim over four years late, beyond Kenya's three-year limit.

What this practically means

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Executive summary

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The plaintiff was injured on 20 July 2011 when knocked down by a crane in the course of employment and filed suit on 9 October 2015 claiming damages for negligence and breach of statutory duty. The trial magistrate (Patrick Olengo, PM, Nyando) struck out the suit on 7 December 2017 as time barred under Section 90 of the Employment Act. On the plaintiff's application under Order 51 Rule 1 of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure Act, the trial court on 31 May 2018 granted leave to appeal out of time and stayed execution of the ruling. On appeal, Mathews N. Nduma J, sitting as a first appellate court, confined the determination to the limitation question, the merits having not been reached below. The court held that although the preliminary objection was premised on the wrong provision - the claim being tortious, the correct provision was Section 4(1) of the Limitation of Actions Act, Cap 22, providing a three-year period, not Section 90 of the Employment Act - the error did not invalidate the outcome. The suit filed more than four years after the cause of action was time barred, and limitation going to jurisdiction, the trial court was bound to drop its tools. The court affirmed the striking out, dismissed the appeal as lacking merit, and made no order as to costs.

Key legal issues

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01

Applicable limitation period

Holding

The claim, though pleaded in the context of employment, was founded in tort and breach of statutory duty, so the three-year period under Section 4(1) of the Limitation of Actions Act applied, not Section 90 of the Employment Act

Reasoning

The court held the cause of action arose from a workplace injury claim in negligence and breach of statutory duty, with remedies sought under WIBA rather than the Employment Act. The Employment Act's three-year limitation in Section 90 governs actions based on the Act or contract of service; here the claim was tortious, so the Limitation of Actions Act applied. The suit filed on 9 October 2015 for a cause of action arising on 20 July 2011 was therefore out of time.

p. 2
02

Jurisdiction and time bar

Holding

Because the suit was time barred, the trial court lacked jurisdiction to entertain it and correctly struck it out

Reasoning

Relying on the Lilian 'S' doctrine, the court held that limitation goes to jurisdiction. Once the trial court found the suit was filed beyond the limitation period, it was bound to decline jurisdiction. The trial magistrate's decision, though based on the wrong statutory provision, reached the correct result and was affirmed.

p. 2
03

First appeal court's duty

Holding

A first appellate court must re-evaluate the facts and law and reach its own independent conclusion

Reasoning

Citing Selles vs Associated Motor Boat Company Limited, the court noted its mandate on first appeal. It nonetheless confined itself to the limitation issue since the trial court had not determined the merits of the suit.

p. 1

Legal principles established

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  • Limitation goes to jurisdiction; a court must decline to hear a suit filed outside the limitation period
  • A preliminary objection may be premised on the wrong statutory provision yet still be valid if founded on a correct point of law

Court orders

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  1. 1.Appeal dismissed
  2. 2.Finding that the suit was time barred by dint of Section 4(1) of the Limitation of Actions Act, Cap 22
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act, Cap 22Section 4(1)
  • Work Injury Benefits Actnot specified
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSections 3, 3A and 63(e)

Cases cited (2)

  • Selles vs Associated Motor Boat Company Limited
    1968, EA
  • Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited
    (1969) EA 699
On appeal from
Principal Magistrate's Court, Nyando
Not stated
Jurisdiction invoked
First appeal under section 51 Rule 1 Civil Procedure Rules 2010; leave to appeal out of time granted by the trial magistrate on 31 May 2018

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, "David Miregwa Nyanchongi v Chemelil Sugar Company Limited [2019] KEELRC 388 (KLR)", Case Analysis (2019). Not stated in the extract (ELRC appeal from Principal Magistrate Nyando). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/388/eng@2019-11-04

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