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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1400 (KLR)

Paul Mwangi Kiiru v Tusker Mattresses Limited [2020] KEELRC 1400 (KLR)

Employment and Labour Relations Court
27 February 2020
HWHellen Wasilwa
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim filed just 24 days late was dismissed because the three-year deadline under Section 90 of the Employment Act cannot be extended.

What this practically means

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Executive summary

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The Respondent, Tusker Mattresses Limited, filed a Notice of Preliminary Objection dated 23rd September 2019 against the Claimant, Paul Mwangi Kiiru, contending that his employment claim was time barred under Section 90 of the Employment Act, 2007, an abuse of the Court process, and incompetent and fit for striking out with costs. The Claimant, a former employee whose employment was terminated in June 2014, admitted in his Replying Affidavit that he filed the claim 24 days after the expiry of the limitation period, attributing the delay to his previous advocate who sat on the file for over a year. He urged the Court, invoking Article 159 of the Constitution and the overriding objective, to hear the case on its merits notwithstanding the technicality. The Respondent submitted that the cause of action arose on the date of dismissal, that Section 90 mandatorily requires suits under the Employment Act or a contract of service to be brought within three years, that Section 27 of the Limitation of Actions Act does not apply to contract-based employment claims, and that limitation goes to jurisdiction and cannot be excused as a technicality, relying on several authorities including Thuranira MKarauri v Agnes Ncheche. Justice Hellen Wasilwa noted the Claimant's admission of a 24-day late filing, held the claim to have been filed contrary to the mandatory provisions of Section 90, and dismissed the Claim for want of time. The judgment was delivered on 27th February 2020, with the Respondent absent and Mbugua holding brief Arati for the Claimant.

Key legal issues

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01

Whether the claim filed 24 days after the expiry of the three-year limitation period under Section 90 of the Employment Act is time barred

Holding

Yes. The claim was filed contrary to the mandatory provisions of Section 90 and must fail for want of time.

Reasoning

The Claimant admitted filing the claim 24 days late. Section 90 of the Employment Act, 2007 requires that civil actions arising out of the Act or a contract of service be commenced within three years of the act. The cause of action arose on the date of dismissal in June 2014, and the suit was filed about five years later. The Court found no basis to exercise any indulgence, holding the provision mandatory, and dismissed the claim.

p. 2
02

Whether limitation is a procedural technicality curable under Article 159 of the Constitution

Holding

No. The Respondent argued, and the Court accepted in effect, that limitation cannot be overlooked as a mere technicality and the Employment Act gives no discretion to extend time in employment matters.

Reasoning

The Claimant invoked Article 159 and the overriding objective of the Civil Procedure Act to plead for relief from a slight procedural technicality, blaming his former advocate's delay. The Respondent countered that the Employment Act, being recent legislation, gives no room for discretion to extend time and that a contract-based claim filed out of time must be terminated forthwith. The Court dismissed the claim without granting the indulgence sought.

p. 2

Legal principles established

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  • A claim under the Employment Act must be instituted within three years of the act complained of, and a claim filed outside that period fails for want of time

Court orders

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  1. 1.The Claim is dismissed for being filed outside the limitation period set in Section 90 of the Employment Act, 2007

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 27
  • Public Authorities Limitation ActSection 3(2)
  • Civil Procedure ActOverriding objectives
  • Civil Procedure Rules (2010)Overriding objectives
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Drummond Jackson vs. Britain Medical Association
    (1970) 2 WLR 688
  • Jane Njeri Mbugua v Teachers Service Commission
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • Thuranira MKarauri v Agnes Ncheche
    [1997] eKLR
  • Justine S. Sunyai v Judicial Service Commission & another
    [2017] eKLR
  • Fred Mudave Gogo v G4S Security Services (K) Ltd
    [2014] eKLR
  • Mellen Moraa Maiko v Board of Management, Marani Secondary School
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising from a contract of service); no specific constitutional provision invoked

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, "Paul Mwangi Kiiru v Tusker Mattresses Limited [2020] KEELRC 1400 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1400/eng@2020-02-27

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