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ELRCDismissedNot stated in judgment· [2020] KEELRC 1015 (KLR)

Joseph Kaguthi & 11 others v Principal Secretary, Ministry of Interior & Co-ordination of National Government & another [2020] KEELRC 1015 (KLR)

Employment and Labour Relations Court
22 May 2020
RSRadido Stephen
1,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it has no power to extend the six-year deadline for filing contract-based employment claims, so twelve ex-committee members' case failed.

What this practically means

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Executive summary

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Twelve applicants filed an Originating Summons on 12 February 2020 seeking leave to file a suit out of time and to have their draft Statement of Claim deemed duly filed. Their intended claim was for remuneration and allowances arising from their gazetted membership of the National Committee on Implementation on Citizen Participation in Security in Kenya, appointed by Gazette Notice No. 2700 of 22 April 2016. Unpaid arrears for November 2015 to December 2016 remained outstanding despite interventions by the Commission on Administrative Justice, prompting a demand letter and statutory notice in December 2019. The respondents opposed, arguing the claim sounded in tort and was barred by section 3(1) of the Public Authorities Limitation Act, that the High Court rather than the ELRC had jurisdiction, and that the Government Proceedings Act did not apply. The court held the gravamen of the claim was contractual, being terms and conditions of service, so the ELRC had jurisdiction. However, the determinative issue was whether a court can extend time for filing a contract suit. Following Divecon v Samani, the court held that limitation in contract is substantive and no court may entertain an action or an extension application brought outside the limitation period; Rawal v Mombasa Hardware was distinguished as concerning reinstatement of a dismissed suit. Without making a finding on whether the applicants were out of time, the court dismissed the Originating Summons with no order on costs.

Key legal issues

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01

Jurisdiction of the ELRC over the dispute

Holding

The dispute is contractual, concerning terms and conditions of service, and falls within the ELRC's jurisdiction, not the High Court's

Reasoning

The applicants' claim was for remuneration and allowances for their membership of the National Committee, which formed the terms and conditions of their service in the public service. The court held the gravamen was contractual rather than tortious, rejecting the respondents' argument that the claim was tort-based and outside the ELRC's jurisdiction.

p. 3
02

Power to extend limitation time in contractual actions

Holding

No court has jurisdiction to extend limitation time or grant leave to file a contract suit out of time

Reasoning

Relying on Divecon v Samani, the court held that section 4(1) of the Limitation of Actions Act bars actions founded on contract after six years and that no court may entertain an application to extend such time; Part III of the Act does not apply to contract actions. Rawal v Mombasa Hardware was distinguished as concerning reinstatement of a dismissed suit, not extension of limitation.

p. 3

Legal principles established

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  • Limitation provisions vest a substantive right in the defendant; it is the cause of action, not the remedy, that is barred, and courts have no power to extend limitation time in contractual actions

Court orders

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  1. 1.The Originating Summons filed on 12 February 2020 is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 50
  • Public Authorities Limitation Actsection 3(1)
  • Government Proceedings Actnot specified
  • Limitation of Actions Actsection 4(1), Part III (Chapter 22)
  • Employment Act, 2007section 90

Cases cited (2)

  • Rawal v The Mombasa Hardware Ltd
    (1968) EA 392
  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes relating to terms and conditions 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, "Joseph Kaguthi & 11 others v Principal Secretary, Ministry of Interior & Co-ordination of National Government & another [2020] KEELRC 1015 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1015/eng@2020-05-22

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