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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 2226 (KLR)

Halima Mueke Ngei v Modern Coast Courier (Kenya) Limited [2019] KEELRC 2226 (KLR)

Employment and Labour Relations Court
11 February 2019
NMNzioki wa MakauRSRadido Stephen
1,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondents alleging employment by Modern Coast Express (Kenya) Limited and posting to Kampala, Uganda, where she said she helped set up the company's office. She sought reimbursement of expenses incurred in establishing the Uganda operations, including commissions for acquiring premises, registration of two companies, tax registration and licensing, plus damages for sexual harassment, rent for accommodation in Nairobi and Kampala, and costs. The Respondent denied the employment relationship, raised a preliminary objection that the suit was filed out of time under Section 90 of the Employment Act, and argued the cause of action accrued in Uganda outside the court's territorial jurisdiction. The Claimant relied on a letter of appointment and cited authorities on the control test and constructive dismissal; the Respondent contended the letter was forged, that any arrangement was a contract for service, that the contract was tainted with illegality (no Ugandan work permit), and that the claim was time-barred. The court applied the Owners of Motor Vessel 'Joey' authority on jurisdiction as a threshold issue, then held on the Claimant's own admission that she was constructively dismissed in December 2008 when remuneration ceased, so the 3-year limitation period expired in December 2011. The suits, filed on 29 July 2013, were filed well outside the limitation period and were dismissed, with each party bearing their own costs. The territorial jurisdiction question was left undecided as unnecessary.

Key legal issues

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01

Limitation of actions under Section 90 of the Employment Act

Holding

The suit was filed out of time; the limitation period of 3 years ran from December 2008 when the Claimant was constructively dismissed and ceased being paid, setting in in December 2011, while the suit was filed on 29 July 2013

Reasoning

The court accepted the Claimant's own admission that she was no longer remunerated after December 2008 and abandoned her post in Kampala. This amounted to constructive dismissal in December 2008, starting the 3-year limitation clock under the Employment Act 2007. Filing in July 2013 was over 1½ years late. Having so held, the court found it unnecessary to decide whether the suit should have been filed in Kenya or Uganda.

p. 2
02

Priority of jurisdiction determination

Holding

Jurisdiction is a threshold issue to be determined at the outset on whatever evidence is before the court

Reasoning

Relying on the Owners of Motor Vessel 'Joey' case, the court held that once jurisdiction is questioned, the court must dispose of the issue immediately on the material before it, whether scanty or limited, since a court without jurisdiction has no power to take any further step. The court determined the limitation objection first, mooting the territorial jurisdiction question.

p. 2

Legal principles established

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  • A question of jurisdiction is a threshold issue that must be decided forthwith on the evidence before the court
  • Employment claims must be filed within 3 years of the accrual of the cause of action under Section 90 of the Employment Act

Court orders

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  1. 1.The suits are dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act 2007
  • Citizenship and Immigration Control Act (Uganda)
  • Advocates ActCap 16 Laws of Kenya

Cases cited (9)

  • Christine Adot Lopeyio v Wycliffe Mwathi Pere
    [2013] eKLR
  • Everett Aviation Limited v Kenya Revenue Authority
    [2013] eKLR
  • Lear Shighadi Siyona v Avtech Systems Limited
    [2017] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenya Airways Limited v Satwant Singh Flora
    [2013] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Others
    [2018] eKLR
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2018] eKLR
  • Mumo Matemu v The Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • The Owners and Masters of the Motor Vessel "Joey" v Owners and Masters of the Motor Tugs "Barbara" and "Steve B"
    [2007] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment law; suit governed by Section 90 of the Employment Act (no constitutional provision cited)

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, "Halima Mueke Ngei v Modern Coast Courier (Kenya) Limited [2019] KEELRC 2226 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2226/eng@2019-02-11

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