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ELRCPartially AllowedCivil Appeal No 17 of 2018· [2020] KEELRC 1503 (KLR)

Surya Development Limited v Hamisi Chitole Mwandoro [2020] KEELRC 1503 (KLR)

Employment and Labour Relations Court
27 February 2020
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Respondent, a Casual Labourer, sued the Appellant employer in the Senior Resident Magistrate's Court on 3rd September 2014 seeking special and general damages for a work injury suffered on or about 30th November 2008. The Appellant raised a preliminary objection that the claim was time-barred under Section 4(2) of the Limitation of Actions Act and Section 90 of the Employment Act 2007. On 26th April 2017 the Trial Court dismissed the objection, holding that Section 4 of the Limitation of Actions Act was not mandatory, that the action sounded in contract and fell within the 6-year period, and that Articles 47 and 50 of the Constitution favoured a hearing on the merit without prejudice to the Appellant. The Appellant appealed to the High Court; the appeal was transferred to the Employment and Labour Relations Court on jurisdictional grounds. James Rika, Judge, allowed the appeal. He held that the cause of action arose in 2008 under the Employment Act 2007 regime; that casual labour is a contract of employment regulated by that Act; and that Section 90 is the sole applicable limitation law for such claims, overriding the 6-year contractual period in the Limitation of Actions Act, which applies only to employment contracts breached before 2007. Constitutional provisions on fair administrative action and fair hearing could not cure want of temporal jurisdiction, as a court without jurisdiction is immobilized. The Trial Court's order was substituted with an order upholding the preliminary objection and rejecting the claim; no order was made on costs.

Key legal issues

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01

Governing limitation regime for post-2007 employment claims

Holding

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

Reasoning

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.

p. 2
02

Effect of constitutional provisions (Articles 47, 50, 159) on want of temporal jurisdiction

Holding

Reliance on fair administrative action, fair hearing and Article 159 cannot cure a lack of temporal jurisdiction; jurisdiction must exist first

Reasoning

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'.

p. 2
03

Whether the claim was time-barred

Holding

The claim, filed about six years after a 2008 accident, was time-barred under Section 90 of the Employment Act 2007

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Appeal is allowed
  2. 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. 3.No order on the costs of the Appeal and the Trial

Authorities

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Legislation

  • Limitation of Actions Act Cap 22Section 4(2); Section 4(1)(a)
  • Employment Act 2007Section 90
  • Constitution of KenyaArticles 47, 50, 159

Cases cited (1)

  • Samuel Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others
    [2012] e-KLR
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

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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, "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.