Wambua Mutunge v Rockyard Hotel Limited & another [2019] KEELRC 1109 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claim is time barred under section 90 of the Employment Act, 2007
The suit filed on 29th May, 2013, more than three years after termination on 16th March, 2009, is time barred and the objection succeeds
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.
Whether the claimant's illness and the constitutional command against procedural technicalities excuse the delay
They do not; the mandatory limitation provision prevails
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.
Legal principles established
#- 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
#- 1.The objections by the respondents are found with merit and are hereby allowed
- 2.The claim as filed is hereby struck out
- 3.No orders to costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; preliminary objection under section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.