Peter Ndaka Mutavi v Pembe Flour Mills Limited [2020] KEELRC 250 (KLR)
The bottom line
#A Kenyan employment claim filed four months after the three-year legal deadline was struck out, even though the employee had been waiting for a criminal case to finish.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim filed on 13th August 2015 was barred by Section 90 of the Employment Act
Yes; the cause of action accrued on 17th April 2012 (payment of final dues) and the three-year limitation period lapsed on 16th April 2015, about four months before filing
The termination letter was dated 29th February 2012 and terminal dues were forwarded on 17th April 2012. Taking that as the accrual date, the three-year period expired on 16th April 2015. The claim was filed on 13th August 2015. The court found no provision suspending time pending a criminal case and held that the lapse divested it of jurisdiction.
Whether acquittal in a criminal case suspends the limitation period
No; time does not stop running while an employee is facing criminal charges
The claimant argued time only began running on acquittal, relying on case law about suspension. The court rejected this, holding there is no legal provision stopping time during a criminal trial, and cited authority that time runs while an employee faces criminal charges.
Whether a preliminary objection on limitation raised late, after the suit was set down for hearing, is sustainable
Yes; jurisdiction is a fundamental issue not tied to pleadings and may be raised at any time, even suo moto
While limitation should ideally be raised in the defence, the court held jurisdiction is everything; any decision made without jurisdiction is a nullity, so the objection could be entertained despite its timing.
Legal principles established
#- No civil action arising out of the Employment Act or a contract of service may be instituted unless commenced within three years next after the act, neglect or default complained of, or within twelve months next after cessation of a continuing injury
- Time does not stop running while an employee is facing criminal charges or awaiting the conclusion of a criminal case
- Once the limitation period lapses, the court is divested of jurisdiction, and there is no power to extend time in employment claims
- A jurisdictional issue may be raised at any stage, even by the court suo moto, as it is not tied to pleadings
Court orders
#- 1.The preliminary objection succeeds and the suit is struck out on grounds that it is statute barred
- 2.No orders for costs
- Jurisdiction invoked
- Employment Act, Section 90 (limitation) read with the Limitation of Actions Act (Cap. 22); jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kazungu v Kenya Ports Authority (Miscellaneous Application E002 of 2025) [2025] KEELRC 982 (KLR)[2025] KEELRC 982 (KLR)27 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Peter Ndaka Mutavi v Pembe Flour Mills Limited [2020] KEELRC 250 (KLR)", Case Analysis (2020). Employment and Labour Relations Court Claim filed 13th August 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/250/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.