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ELRCDismissedNot stated in the judgment extract· [2020] KEELRC 435 (KLR)

Rosemary Kanyua Gitonga v Kenya Power & Lighting Co Ltd [2020] KEELRC 435 (KLR)

Employment and Labour Relations Court
25 September 2020
RSRadido Stephen
745 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 ruled it cannot extend the three-year deadline for filing contract-based employment claims, so late suits are barred regardless of the reason for delay.

What this practically means

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Executive summary

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The applicant, a former employee of Kenya Power & Lighting Co. Ltd, accepted a Voluntary Early Retirement offer on 2 April 2015. Through advocates, she made demands on the Respondent on 22 March 2016 and 14 January 2020 alleging that the terms of the offer were discriminatory and in breach of contract, and then filed a motion seeking leave to file suit out of time and to have the claim deemed duly filed. The Respondent opposed the motion by Grounds of Opposition filed on 16 June 2020. The Court identified the cause of action as contractual and, applying section 90 of the Employment Act, 2007, held that suit should have been commenced within three years, by 2 April 2018 at the latest. The applicant invoked section 12(3)(vii) of the Employment and Labour Relations Court Act and cited Beatrice Kahai Adagala v Postal Corporation of Kenya in support of a discretion to extend time, explaining the delay by serious health challenges including diabetes and dyslipidemia, evidenced by a medical note. Relying on the Court of Appeal decisions in Divecon v Samani, Kenya Airports Authority v Shadrack Abraham Kisongochi and Attorney General & Anor v Andrew Maina Githinji & Anor, the Court held that it has no power to extend time for the filing of an action founded on contract, and that a court purporting to do so acts without jurisdiction. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether the ELRC has jurisdiction to grant leave to file suit out of time in a contractual employment claim

Holding

The Court has no such jurisdiction; section 90 of the Employment Act prescribes a 3-year limitation period for contractual claims and it cannot be extended.

Reasoning

The applicant's cause of action was contractual, having accrued on acceptance of the voluntary early retirement offer on 2 April 2015, so suit ought to have been filed by 2 April 2018 under section 90 of the Employment Act. Relying on Court of Appeal authority in Divecon v Samani and Kenya Airports Authority v Kisongochi, the Court held that no discretion exists to extend time for contract-based actions, and that a trial court granting such leave acts without jurisdiction.

p. 2

Legal principles established

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  • A court has no power to grant leave to file an action founded on contract after the statutory limitation period has expired; limitation provisions on extension do not apply to actions based on contract.

Court orders

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  1. 1.The motion seeking leave to file suit out of time is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Actsection 90
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Limitation of Actions Actsection 4(1); Part III

Cases cited (4)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    (2014) eKLR
  • Divecon v Samani
    (1995 -1998) EA 48
  • Kenya Airports Authority v Shadrack Abraham Kisongochi
    (2016) eKLR
  • Attorney General & Ar vs Andrew Maina Githinji & Ar
    (2016) eKLR
Jurisdiction invoked
Section 12(3)(vii) of the Employment and Labour Relations Court Act was invoked by the applicant; the court found it confers no power to extend time for filing a contractual claim

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, "Rosemary Kanyua Gitonga v Kenya Power & Lighting Co Ltd [2020] KEELRC 435 (KLR)", Case Analysis (2020). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/435/eng@2020-09-25

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