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ELRCStruck OutNot stated in judgment· [2021] KEELRC 260 (KLR)

Oscar Owino v G4s Security Services (K) Limited [2021] KEELRC 260 (KLR)

Employment and Labour Relations Court
9 December 2021
583 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 over three years after dismissal was struck out because the Employment Act's time limit removes the court's power to hear it.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a courier guard from 1st March 2008 at a monthly salary of Kshs.14,000/=, averred that he was summarily dismissed on 31st March 2010, allegedly maliciously to cover illegal acts of senior management. He claimed unpaid salary for March 2010 (Kshs.14,000/=), salary in lieu of notice (Kshs.42,000/=), severance pay (Kshs.246,000/=) and leave allowance (Kshs.42,000/=), plus interest. The respondent neither entered appearance nor filed a response, and there was no affidavit of service on the file; the matter proceeded as an undefended claim. The court considered the pleadings and the claimant's submissions and raised the issue of limitation on its own motion. It noted that the dismissal occurred on 31st March 2010 while the memorandum of claim was filed on 16th October 2015, more than five years later. Section 90 of the Employment Act prescribes a three-year limitation period from the act, or twelve months after cessation in cases of continuing injury. The court held that a case filed out of time takes away its jurisdiction, and relying on Maria Machocho v Total Kenya Ltd, that it has neither statutory jurisdiction nor discretion to extend time for Employment Act causes of action. The court struck out the claim with no orders as to costs. The judgment was delivered virtually under the COVID-19 practice directions.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The claim, filed more than five years after summary dismissal, was time barred and the court lacked jurisdiction to entertain it

Reasoning

The claimant was dismissed on 31st March 2010 but filed the memorandum of claim on 16th October 2015, more than five years later. Section 90 of the Employment Act prescribes three years from the act of dismissal, with a 12-month window only for continuing injuries after cessation. The suit fell squarely outside the statutory period, and being undefended did not cure the jurisdictional defect.

p. 1
02

Jurisdiction where suit is filed out of time

Holding

Filing out of time ousts the court's jurisdiction; the court cannot grant leave or extend time in Employment Act matters absent statutory provision

Reasoning

Relying on Maria Machocho v Total Kenya Ltd, the court held it has neither statutory jurisdiction nor discretion to extend time for Employment Act causes of action. The undefended nature of the claim did not confer jurisdiction, since jurisdiction is conferred by law and cannot be assumed by default or consent of the parties.

p. 1

Legal principles established

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  • A suit filed out of time under Section 90 of the Employment Act deprives the court of jurisdiction, and the court has no statutory jurisdiction or discretion to extend time for causes of action based on breach of service or actions arising out of the Employment Act, 2007

Court orders

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  1. 1.The claimant's suit is struck off for being time barred
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act2007
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (1)

  • MARIA MACHOCHO VS TOTAL KENYA LIMITED
    Misc. Civil Case No.2 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90)

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, "Oscar Owino v G4s Security Services (K) Limited [2021] KEELRC 260 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/260/eng@2021-12-09

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