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ELRCStruck OutNot stated in the extract· [2019] KEELRC 1109 (KLR)

Wambua Mutunge v Rockyard Hotel Limited & another [2019] KEELRC 1109 (KLR)

Employment and Labour Relations Court
7 March 2019
610 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 employee's claim because it was filed more than three years after dismissal, confirming that the Employment Act's deadline cannot be extended.

What this practically means

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Executive summary

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The respondents, Rockyard Hotel Limited and David Maina Ngigi, raised a preliminary objection dated 18th September, 2018 arguing that the claimant's Memorandum of Claim, filed on 29th May, 2013, was time barred under section 90 of the Employment Act, 2007. The claimant had been terminated on 16th March, 2009 and sought notice pay, underpayments, annual leave, salary for May 2009 and gratuity. In written submissions the respondents relied on Maria Machocho v Total Kenya Limited, while the claimant explained the delay by illness and hospitalisation following the termination, and invoked Articles 2(1) and 159(2)(d) of the Constitution against procedural technicalities. The court found that the suit was filed over three years after the cause of action arose, and that section 90 is couched in mandatory terms leaving the court no discretion to extend time. Adopting the Court of Appeal's reasoning in Beatrice Kahai Adagala v Postal Corporation of Kenya, which itself drew on Divecon Limited v Samani and Josephat Ndirangu v Henkel Chemicals, the court held that limitation periods in contract-based employment claims cannot be extended, and any grounds for delay are therefore irrelevant. The preliminary objection was allowed, the claim was struck out, and the court made no orders as to costs.

Key legal issues

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01

Whether the claim is time barred under section 90 of the Employment Act, 2007

Holding

The suit filed on 29th May, 2013, more than three years after termination on 16th March, 2009, is time barred and the objection succeeds

Reasoning

The court found that employment was terminated on 16th March, 2009 and the Memorandum of Claim was filed on 29th May, 2013, a period exceeding three years. Section 90 of the Employment Act, 2007 is couched in mandatory terms and gives the court no discretion to extend time. The Court of Appeal's reasoning in Beatrice Kahai Adagala was adopted: the limitation period in contract-based claims cannot be extended, and extension is only possible in tort claims satisfying sections 27 and 28 of the Limitation of Actions Act.

p. 1
02

Whether the claimant's illness and the constitutional command against procedural technicalities excuse the delay

Holding

They do not; the mandatory limitation provision prevails

Reasoning

The claimant argued that illness and hospitalisation explained the delay and invoked Articles 2(1) and 159(2)(d) of the Constitution on procedural technicalities. The court associated itself with Beatrice Kahai Adagala, where sympathy did not avail because section 90 ties the court's hands. Since the court has no leeway to extend time, whatever reasons caused the delay are irrelevant.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is mandatory; a claim based on a contract of employment must be filed within 3 years and the court has no discretion to extend time, whatever the reason for delay

Court orders

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  1. 1.The objections by the respondents are found with merit and are hereby allowed
  2. 2.The claim as filed is hereby struck out
  3. 3.No orders to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Constitution of Kenya, 2010Article 2(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Limitation of Actions Actsections 27 and 28

Cases cited (4)

  • Maria Machocho versus Total Kenya Limited
    [2013] eKLR
  • Beatrice Kahai Adagala versus Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited -vs- Samani
    [1995-1998] 1 EA P.48
  • Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; preliminary objection under section 90 of the Employment Act, 2007

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, "Wambua Mutunge v Rockyard Hotel Limited & another [2019] KEELRC 1109 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1109/eng@2019-03-07

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