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ELRCDismissedMemorandum of Claim filed 13th March, 2020· [2021] KEELRC 489 (KLR)

John Mwangi Ngugi v Orient Sacco Society Limited [2021] KEELRC 489 (KLR)

Employment and Labour Relations Court
12 November 2021
MOMaureen Onyango
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that the day you're dismissed doesn't count, so an employment claim filed three years later, minus one day, was still on time.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 19th January 2021 seeking the striking out or dismissal of the Claimant's Memorandum of Claim filed on 13th March 2020, on the ground that the claim arising from a summary dismissal on 13th March 2017 was statute barred under Section 90 of the Employment Act, and that the court therefore lacked jurisdiction. The Respondent relied on authority establishing the nature of preliminary objections and cases where suits filed beyond the three-year period were dismissed, arguing the court had no power to extend limitation in employment matters. The Claimant opposed, relying on Section 57 of the Interpretation and General Provisions Act to exclude the date of termination from the computation of time, on Order 50 Rule 4 of the Civil Procedure Rules to exclude the Christmas recess period, and on the doctrine of continuing injury. The court held that Order 50 Rule 4 applies only to time computation under the Civil Procedure Rules or court orders, being procedural, and not to the substantive limitation periods in the Employment Act or Limitation of Actions Act, following the Court of Appeal decision in Maersk Kenya Limited v Murabu Chaka Tsuma. Applying Section 57(a), the court excluded the date of termination, found time ran from 14th March 2017 and lapsed on 14th March 2020, and held the claim filed on 13th March 2020 was not time barred. The preliminary objection was dismissed with costs. The judgment was delivered virtually at Nairobi on 12th November 2021 pursuant to COVID-19 directions.

Key legal issues

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01

Applicability of Order 50 Rule 4 of the Civil Procedure Rules to statutory limitation periods

Holding

The Christmas recess exclusion under Order 50 Rule 4 applies only to time computation under the Civil Procedure Rules or a court order, not to substantive limitation periods under the Employment Act

Reasoning

The court held that Order 50 Rule 4 was intended for computing time under the Civil Procedure Rules or court orders, being procedural law, whereas the Employment Act and the Limitation of Actions Act fix substantive limitation periods to which the rule does not extend. It relied on the Court of Appeal decision in Maersk Kenya Limited v Murabu Chaka Tsuma.

p. 2
02

Computation of the three-year limitation period under Section 90 of the Employment Act

Holding

Excluding the date of termination, time began running on 14th March 2017 and lapsed on 14th March 2020; a claim filed on 13th March 2020 was therefore within time

Reasoning

Applying Section 57(a) of the Interpretation and General Provisions Act, the court excluded the day of termination (13th March 2017) and computed the three years from 14th March 2017, expiring 14th March 2020. The claim filed on 13th March 2020 was just within the period, so the suit was not statute barred and the preliminary objection failed.

p. 3

Legal principles established

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  • In computing time under a written law, the day on which the event happens is excluded
  • Order 50 Rule 4 of the Civil Procedure Rules is procedural and does not apply to limitation periods fixed by the Employment Act or the Limitation of Actions Act, which are substantive law

Court orders

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  1. 1.The preliminary objection dated 19th January, 2021 is dismissed with costs
  2. 2.Judgment dated, signed and delivered virtually at Nairobi on 12th November 2021

Authorities

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Legislation

  • Employment ActSection 90
  • Interpretation and General Provisions ActSection 57
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (14)

  • Mukhisa Buscuits Manufacturing Co. Ltd v West End Distributors Company Limited
    (1969) E.A. 696
  • Attorney General & Another v Andrew Maina Githinji and Another
    (2016) eKLR
  • Lydia Pamela Nyangala v Royal Media Services Ltd
    (2016) eKLR
  • Justine S. Sunyai v Judicial Service Commission
    (2017) eKLR
  • Divecon v Samani
    (1995-1998) E.A. 48
  • Peter Nyamai & Another v M.J Clarke Limited
    (2013) eKLR
  • Charles Musa Kweyu v Wananchi Marine Products
    (2014) eKLR
  • Augustine Odhiambo Abiero v K.K Security Ltd
    (2014) eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    (1989) 1 KLR
  • Re the matter of the Interim Independent Electoral Commission
    S.C Constitutional Application No. 2 of 2011 (2011) eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited
    (2012) eKLR
  • Kenya Power & Lighting Co. Ltd v Brookfield Academy Ltd & Another
    [2007] eKLR
  • George Hiram Ndirangu v Equity Bank Limited
    (2014) eKLR
  • Maersk Kenya Limited v Murabu Chaka Tsuma
    (2017) eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007; Employment and Labour Relations Court jurisdiction over employment and labour relations matters

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, "John Mwangi Ngugi v Orient Sacco Society Limited [2021] KEELRC 489 (KLR)", Case Analysis (2021). Memorandum of Claim filed 13th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/489/eng@2021-11-12

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