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ELRCStruck OutNot stated in the judgment· [2019] KEELRC 2008 (KLR)

David Muthui Musyimi v Masai Bars & Restaurants Limited [2019] KEELRC 2008 (KLR)

Employment and Labour Relations Court
7 March 2019
LNLINNET NDOLO
468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employment claims must be filed within three years, and dismissed a late claim despite arguments for extra time.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa, delivered by Linnet Ndolo J on 7 March 2019, determines a Preliminary Objection raised by the Respondent by notice dated 18 June 2018. The objection contended that the Claimant's Memorandum of Claim dated 12 April 2018, filed on 19 April 2018, was time barred under Section 90 of the Employment Act, which requires such claims to be instituted within three years of the act, neglect or default complained of. The Respondent argued that the cause of action arose on 5 March 2015, when the Claimant's employment was verbally terminated, and that the court therefore lacked jurisdiction. The Claimant countered that Sundays and public holidays should be excluded when computing time, and that the dominant cause of action being breach of contract was governed by Section 4(1) of the Limitation of Actions Act. The court rejected both submissions. It found nothing in Section 90 excluding Sundays and public holidays, and held that Section 90 expressly covers all civil actions arising out of contracts of service, including breach of contract. Relying on the Court of Appeal's definition of a cause of action in Attorney General v Andrew Maina Githinji, the court found the cause of action accrued on 5 March 2015, rendering the claim statute barred. Following Nicodemus Marani v Timsales Limited, the court held Section 90 leaves no room to extend time. The Claimant's claim was struck out, with each party bearing their own costs.

Key legal issues

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01

Whether Sundays and public holidays are excluded in computing time under Section 90 of the Employment Act

Holding

They are not excluded; the provision contains no such exclusion.

Reasoning

The court examined the wording of Section 90 and found nothing in it that excludes Sundays and public holidays when tabulating limitation time. The Claimant's submission to that effect was rejected.

p. 1
02

Whether a claim for breach of contract of service falls outside Section 90 and is instead governed by Section 4(1) of the Limitation of Actions Act

Holding

Section 90 expressly covers all civil actions arising out of contracts of service, including breach of contract.

Reasoning

The court held that Section 90's wording covers all civil actions arising from contracts of service generally, so the dominant-cause argument seeking to import the six-year period under Section 4(1) of the Limitation of Actions Act fails. The three-year period under Section 90 governs.

p. 1
03

Whether the claim filed on 19 April 2018, based on termination on 5 March 2015, is time barred

Holding

Yes, the claim is statute barred and must be struck out.

Reasoning

The cause of action arose on the date of verbal termination, 5 March 2015, as pleaded in the Memorandum of Claim. A claim filed on 19 April 2018 exceeds the three-year limitation period. Following Nicodemus Marani v Timsales Limited, time cannot be extended. The claim was struck out.

p. 1

Legal principles established

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  • Section 90 of the Employment Act excludes Sundays and public holidays from limitation computation.
  • Section 90 covers all civil actions arising out of contracts of service, including breach of contract, and leaves no room to extend time beyond three years.

Court orders

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  1. 1.The Claimant's claim is struck out
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (2)

  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Nicodemus Marani v Timsales Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Section 90 of the Employment Act (limitation for actions arising out of contracts of service)

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 Muthui Musyimi v Masai Bars & Restaurants Limited [2019] KEELRC 2008 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2008/eng@2019-03-07

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