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ELRCDismissedNotice of Motion dated 16th February 2021· [2021] KEELRC 1170 (KLR)

Galgalo Jarso Jillo v National Bank of Kenya Limited [2021] KEELRC 1170 (KLR)

Employment and Labour Relations Court
29 July 2021
LNLINNET NDOLO
667 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 court confirmed it cannot extend the three-year deadline for contract-based unfair termination claims, no matter how sympathetic the delay.

What this practically means

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Executive summary

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The Applicant, formerly employed by the Respondent as Branch Manager, Garissa, by letter dated 14th June 2013, sought leave by Notice of Motion dated 16th February 2021 to file a claim out of time, alleging wrongful and unfair termination. He attributed the delay to Garissa Criminal Case No 56 of 2014 (Republic v Galgalo Jarso Jillo & 2 others), which ran for over five years until his acquittal on 14th June 2019, contending that the criminal proceedings and resulting financial constraint made the delay excusable and that the Respondent would suffer no prejudice. The Respondent opposed the motion through a replying affidavit sworn by Samuel W. Mundia on 12th March 2021, and both parties filed written submissions. The sole issue was whether the Court has power to extend time under Section 90 of the Employment Act, which requires contract-based employment claims to be filed within three years. Relying on the Court of Appeal's decision in Beatrice Kahai Adagala v Postal Corporation of Kenya, which described Section 90 as mandatory and held that limitation periods in contract claims cannot be extended, the Judge held that she was bound by both the law and the doctrine of stare decisis. The motion was accordingly declined. In light of the Applicant's predicament, the Court directed that each party bear their own costs. The judgment was delivered at Mombasa on 29th July 2021 via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the ELRC can extend the limitation period under Section 90 of the Employment Act for claims arising from a contract of service

Holding

The Court has no power to extend time under Section 90; the limitation period is mandatory and cannot be extended in contract-based claims

Reasoning

Section 90 of the Employment Act ousts the general extension power under Section 4(1) of the Limitation of Actions Act and requires contract-based employment claims to be filed within three years. The Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya held the provision mandatory and that extension is only possible in tort claims under Sections 27 and 28 of the Limitation of Actions Act. Bound by stare decisis, the judge declined the motion despite sympathy for the applicant's circumstances.

p. 2

Legal principles established

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  • A claim based on a contract of employment must be filed within three years under Section 90 of the Employment Act, which is in mandatory terms and admits of no extension

Court orders

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  1. 1.The Applicant's Notice of Motion dated 16th February 2021 is declined
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSections 27 and 28

Cases cited (3)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited –vs- Samani
    [1995-1998] 1 EA P. 48
  • Josephat Ndirangu –vs- Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Section 90 of the Employment Act

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, "Galgalo Jarso Jillo v National Bank of Kenya Limited [2021] KEELRC 1170 (KLR)", Case Analysis (2021). Notice of Motion dated 16th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1170/eng@2021-07-29

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