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ELRCStruck OutNot stated in the excerpt· [2020] KEELRC 1647 (KLR)

Ogwara v Judicial Service Commission (Cause 53 of 2016) [2020] KEELRC 1647 (KLR)

Employment and Labour Relations Court
13 February 2020
MNMathews N. Nduma
545 words in judgment
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The bottom line

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A Kenyan employment claim filed even one month past the three-year deadline was struck out, and the court had no power to extend time.

What this practically means

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Executive summary

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The claimant, a watchman employed at the Kisii law courts on a monthly salary of Kshs. 9,000, had his employment terminated on 9th January 2013. He sued on 8th February 2016 and later filed an amended memorandum of claim on 12th July 2017 seeking three months' salary in lieu of notice (Kshs. 27,000), unpaid leave (Kshs. 16,200), terminal benefits (Kshs. 1,944,000), damages for unlawful termination and loss of prospects in life. The respondent filed a response raising a counter claim for lost items allegedly under the claimant's watch, and a preliminary objection that the suit was time barred under Section 90 of the Employment Act, 2007, which prescribes a three-year limitation period. The parties filed written submissions on the objection. The court found that the limitation period expired on 9th January 2016 and the suit was filed one month late. Relying on Peter Myawa and 7 others v M.J. Clerke Limited, it held that it had no jurisdiction or discretion to extend time for employment contract claims. The claimant's submission that he had only exhausted internal appeal procedures on 9th June 2015 was rejected because the claimant stands or falls on his pleadings, which stated a clear and unequivocal termination date. The memorandum of claim and amended memorandum of claim were struck out for want of jurisdiction; the counter claim was also found time barred. The court made no order as to costs.

Key legal issues

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01

Whether the suit was time barred under Section 90 of the Employment Act, 2007

Holding

Yes - termination was on 9th January 2013, the three-year limitation period expired on 9th January 2016, and the suit filed on 8th February 2016 was one month late; the court lacks jurisdiction to entertain it.

Reasoning

The court computed the limitation period from the date of termination as pleaded (9th January 2013) to the date of filing (8th February 2016), finding the suit filed one month after expiry of the three-year period. The claimant's submission that he only exhausted internal appeal procedures on 9th June 2015 was rejected because it was not pleaded, and the pleaded date of termination was clear and unequivocal.

p. 2
02

Whether the counter claim was also barred

Holding

Yes, the respondent's counter claim for lost items was equally time barred.

Reasoning

Having found the claim time barred for want of jurisdiction, the court applied the same limitation analysis to the respondent's counter claim regarding lost items allegedly under the claimant's watch, holding it equally time barred.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court has no jurisdiction or discretion to extend time or grant leave to file a claim out of time in respect of causes of action based on breach of employment contract
  • A party stands or falls on his pleadings and the court cannot consider explanatory assertions not found in the pleadings

Court orders

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  1. 1.The memorandum of claim and the amended memorandum of claim are struck out for want of jurisdiction
  2. 2.The counter claim is also struck out as time barred
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment ActSection 90

Cases cited (1)

  • Peter Myawa and 7 others v M.J. Clerke Limited
    [2003] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation of employment claims)

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, "Ogwara v Judicial Service Commission (Cause 53 of 2016) [2020] KEELRC 1647 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1647/eng@2020-02-13

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