Surya Development Limited v Hamisi Chitole Mwandoro [2020] KEELRC 1503 (KLR)
The bottom line
#Work injury claims in Kenya must be filed within 3 years under Section 90 of the Employment Act—the longer 6-year limit doesn't apply.
What this practically means
#Executive summary
#Key legal issues
#Governing limitation regime for post-2007 employment claims
Section 90 of the Employment Act 2007 governs and excludes Section 4(1)(a) of the Limitation of Actions Act for employment contracts breached after the Act came into force
The cause of action arose in 2008, during the life of the Employment Act 2007. Casual labour is a contract of employment regulated by the Act. Section 90 applies to civil actions arising out of the Act or a contract of service, notwithstanding the longer 6-year limit in the Limitation of Actions Act, because employment contracts are special contracts with a specialized enforcement regime. The 6-year contractual limit applies only to employment contracts breached before the 2007 Act came into force.
Effect of constitutional provisions (Articles 47, 50, 159) on want of temporal jurisdiction
Reliance on fair administrative action, fair hearing and Article 159 cannot cure a lack of temporal jurisdiction; jurisdiction must exist first
The Trial Court had reasoned that Articles 47 and 50 favoured hearing the claim on merit and that no prejudice would be suffered. The Court held this was a wrong approach: the question was the jurisdiction of the Trial Court, not prejudice or constitutional rights protection. Without jurisdiction the court is immobilized and cannot discharge authority under Article 159 or protect employees. Section 90 is a jurisdictional law giving the court 'time-mobility'.
Whether the claim was time-barred
The claim, filed about six years after a 2008 accident, was time-barred under Section 90 of the Employment Act 2007
The cause of action arose on or about 30th November 2008 and the Plaint was filed on 3rd September 2014. Section 90 prescribes a limitation period of 3 years for such claims. The Respondent could not rely on the 6-year contractual limitation under the Limitation of Actions Act. The preliminary objection should therefore have been upheld and the claim rejected.
Legal principles established
#- Section 90 of the Employment Act 2007 is the sole applicable law on limitation for employment claims arising out of the Act or a contract of service, overriding the 6-year period in the Limitation of Actions Act
- Casual labour is a form of contract of employment regulated under the Employment Act 2007
- A court cannot exercise jurisdiction it does not have; jurisdiction flows from the Constitution or legislation
- Without jurisdiction a court cannot discharge any authority, including enforcement of constitutional rights
Court orders
#- 1.The Appeal is allowed
- 2.The order of the Trial Court declining the preliminary objection is substituted with an order upholding the preliminary objection and rejecting the Claim before the Trial Court under Section 90 of the Employment Act
- 3.No order on the costs of the Appeal and the Trial
- On appeal from
- Senior Resident Magistrate's Court
- Not stated (registration details given in the Plaint but not reproduced)
- Jurisdiction invoked
- Appellate jurisdiction of the E&LRC over employment disputes; temporal jurisdiction conferred by Section 90 of the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Surya Development Limited v Hamisi Chitole Mwandoro [2020] KEELRC 1503 (KLR)", Case Analysis (2020). Civil Appeal No 17 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1503/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.