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ELRCOtherNot stated in the excerpt· [2020] KEELRC 275 (KLR)

Enock Angoya Ombeva v Kenya Medical Training College [2020] KEELRC 275 (KLR)

Employment and Labour Relations Court
15 October 2020
HWHellen Wasilwa
890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an unfair termination claim filed over three years late, ruling that going to conciliation does not pause the legal filing deadline.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 13 January 2019 contending that the Employment and Labour Relations Court lacked jurisdiction because the Claimant's suit, arising from an alleged unfair termination, was filed outside the three-year limitation period prescribed by section 90 of the Employment Act, and that the suit was therefore an abuse of process. The Claimant, Enock Angoya Ombeva, opposed the objection through grounds of opposition and a replying affidavit sworn on 19 February 2020, arguing that his dispute had been referred to conciliation which remained pending, and that time could not begin to run until the conciliator issued a certificate and his appeal was determined. Both parties filed written submissions. The Respondent relied on several authorities to the effect that conciliation does not toll limitation, while the Claimant relied on William Mogeni Momanyi v Aga Khan University Hospital. Examining section 90 of the Employment Act, Lady Justice Hellen Wasilwa held that the only exception to the three-year limitation is a continuing injury, and that conciliation is not part of the exceptions; referring a matter to conciliation does not bar a party from filing their claim, and the claimant was required to remain vigilant. The court found the claim time barred, allowed the preliminary objection, dismissed the claim, and made no order of costs. Judgment was delivered in chambers via zoom on 15 October 2020.

Key legal issues

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01

Whether conciliation suspends the section 90 limitation period

Holding

It does not; a claimant must remain vigilant and file the claim within three years despite the pending conciliation

Reasoning

The court read section 90 of the Employment Act and noted that the only exception to the three-year limitation is a continuing injury or damage within twelve months of cessation. Conciliation is not part of the statutory exceptions, and referring a matter to conciliation does not prevent a party from filing their claim in time.

p. 2
02

Whether the claim filed on 2/10/2014 was time barred

Holding

Yes; the memorandum of claim filed on 11/10/2018 was outside the three-year period from the cause of action in 2014

Reasoning

The suit arose from termination said to have occurred around 2/10/2014, more than three years before the claim was filed. Since conciliation did not toll time, the claim was statute-barred and the court lacked jurisdiction to entertain it.

p. 2

Legal principles established

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  • Referral of an employment dispute to conciliation does not stop time from running under section 90 of the Employment Act
  • A claim arising from termination must be filed within three years under section 90 of the Employment Act

Court orders

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  1. 1.The Preliminary Objection dated 13/1/2019 is allowed
  2. 2.The Claimant's Claim is dismissed
  3. 3.No order of costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)
  • Labour Relations Actsection 62

Cases cited (7)

  • G4S Security Services (K) Limited vs. Joseph Kamau & 468 Others
    [2018] eKLR
  • Kilimanjaro Company Limited vs. Kenya Union of Commercial Food and Allied Workers
    [2019] eKLR
  • Fred Mudave Gogo vs. G4S Security Services (K) Limited
    [2014] eKLR
  • Rift Valley Railways (K) Limited vs. Hawkins Wagunza Musonye & Another
    [2016] eKLR
  • Monicah Wanjiku Kanyigi vs. Our Lady of Mercy Secondary School
    [2018] eKLR
  • Joseph Mungai Wanene vs. Housing Finance Company of Kenya Limited
    [2017] eKLR
  • William Mogeni Momanyi vs. Aga Khan University Hospital
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (section 90 limitation)

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, "Enock Angoya Ombeva v Kenya Medical Training College [2020] KEELRC 275 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/275/eng@2020-10-15

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