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ELRCDismissedOriginating Summons dated 10.5.2019· [2021] KEELRC 367 (KLR)

Carolyne Chepkoech v Tirgaga Tea Factory Company Limited [2021] KEELRC 367 (KLR)

Employment and Labour Relations Court
25 November 2021
OMOnesmus N. Makau
643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot extend the three-year deadline for filing employment claims, so waiting too long can permanently bar your case.

What this practically means

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Executive summary

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This ELRC ruling at Nakuru by Onesmus N. Makau, Judge, determined an Originating Summons dated 10.5.2019 brought under section 26 of the Limitation of Actions Act, Order 37 Rule 1(a)&(g) of the Civil Procedure Rules, sections 3A and 63(e) of the Civil Procedure Act and Article 159(1) of the Constitution. The applicant sought leave to bring suit against the respondent out of time, and that her statement of claim be deemed duly filed and served, costs in the cause. Her employment contract had been terminated on 29.9.2012, and nine years had elapsed. The respondent, though served, filed grounds of opposition contending the court lacked jurisdiction and discretion to grant the leave and that no plausible reason for the delay had been shown. The court framed two issues: whether it has jurisdiction to extend time for filing suits founded on contract of employment, and whether the applicant laid any basis for the leave sought. Relying on section 90 of the Employment Act, which requires such suits to be commenced within three years, the court held the provision to be mandatory and held it lacked jurisdiction to enlarge time beyond three years. It followed the Court of Appeal's decision in Beatrice Kahai Adagala v The Postal Corporation of Kenya. The application was dismissed with no costs, since it ought to have been considered ex-parte. The ruling was delivered online pursuant to Covid-19 directives with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Jurisdiction to extend limitation time for employment claims

Holding

The court has no jurisdiction or discretion to grant leave to file an employment suit out of time; section 90 of the Employment Act bars claims not commenced within three years.

Reasoning

Section 90 of the Employment Act, read notwithstanding section 4(1) of the Limitation of Actions Act, requires that civil actions based on the Act or a contract of service be commenced within three years of the act, neglect or default complained of. The cause of action arose on 29.9.2012 and nine years had lapsed. The provision is mandatory, depriving the court of discretion to enlarge time, and binding Court of Appeal precedent confirms this position.

p. 1

Legal principles established

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  • Section 90 of the Employment Act is mandatory: no discretion exists to extend the three-year limitation period for employment-based claims

Court orders

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  1. 1.The application dated 10.5.2019 is dismissed with no costs

Authorities

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Legislation

  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 37 Rule 1(a)&(g)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Constitution of KenyaArticle 159(1)
  • Employment ActSection 90
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Beatrice Kahai Adagala v The Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited vs Samani
    [1995-1998] 1 EA p. 48
Jurisdiction invoked
Section 26 of the Limitation of Actions Act, Order 37 Rule 1(a)&(g) of the Civil Procedure Rules, sections 3A & 63(e) of the Civil Procedure Act and Article 159(1) of the Constitution of Kenya

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, "Carolyne Chepkoech v Tirgaga Tea Factory Company Limited [2021] KEELRC 367 (KLR)", Case Analysis (2021). Originating Summons dated 10.5.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/367/eng@2021-11-25

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