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ELRCDismissedELRC Miscellaneous Application No. 2 of 2021· [2021] KEELRC 1226 (KLR)

Duncan N Nderitu & 55 others v Telkom Kenya Limited [2021] KEELRC 1226 (KLR)

Employment and Labour Relations Court
22 July 2021
HWHellen Wasilwa
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nakuru refused to let former Telkom Kenya workers file claims about 2016 events because Kenyan law gives only three years to sue over employment disputes.

What this practically means

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Executive summary

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The applicants, former employees of Telkom Kenya Limited deployed to its subsidiary Gilgil Industries Limited, had obtained judgment in Nakuru High Court Civil Suit No. 165 of 2006 (a test suit for 300 suits) for salary and house allowance arrears under revised terms of service. The Court of Appeal, by judgment of 4th November, 2016, affirmed entitlement to the benefits but held that the arrears ought to have been specifically pleaded and proved. The applicants then moved this Court by notice of motion dated 25th January, 2021 seeking leave to file their individual claims out of time so as to plead and prove the specific amounts owed, to give effect to the Court of Appeal judgment of 4th November, 2016 and ruling of 6th November, 2020. The respondent opposed, arguing that similar applications had been dismissed in ELRC Cause No. 477 of 2016 and ELRC Misc. Application No. 9 of 2017; that the order relied on was fictitious and defective; that the Court was functus officio; and that the claims were res judicata, an abuse of process, and time-barred. The court considered section 90 of the Employment Act, 2007, which requires employment claims to be filed within three years of the act, neglect or default, or within twelve months of cessation of a continuing injury. It held the provision mandatory, leaving no room for late filing, and since the matter arose in 2016, found the application unmerited. The application was accordingly disallowed on 22nd July, 2021.

Key legal issues

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01

Whether the court could grant leave to file employment claims out of time under section 90 of the Employment Act

Holding

The application was not merited because the limitation period under section 90 is mandatory and the claims arose in 2016, well beyond three years

Reasoning

The court construed section 90 of the Employment Act, which overrides section 4(1) of the Limitation of Actions Act for employment claims, requiring commencement within three years of the act, neglect or default, or twelve months of cessation of continuing injury. It held the provision mandatory with no room for late filing, and since the matter arose in 2016, the application failed. No jurisdiction was found to enlarge time.

p. 4

Legal principles established

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  • No civil action or proceedings based on the Employment Act or a contract of service shall be instituted unless commenced within three years next after the act, neglect or default complained of, or within twelve months after cessation of a continuing injury
  • The limitation period in section 90 of the Employment Act is drafted in mandatory terms and leaves no room for filing claims after three years

Court orders

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  1. 1.The application dated 25th January, 2021 was disallowed/dismissed

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 50, 159, 162(2)(a)
  • Civil Procedure Actsections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Rules 2010Order 51 Rule 1 & 4
  • Employment Act 2007section 90
  • Limitation of Actions Actsection 4(1)

Cases cited (5)

  • Samvir Trustee Limited v Guardian Bank Limited
    Milimani HCCC 795 of 1997
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 106 of 2017 eKLR
  • Duncan Nderitu & 55 others v Telkom Kenya Limited
    Nakuru High Court Civil Suit No. 165 of 2006
  • Duncan N Nderitu and 55 others v Telkom Kenya Limited
    ELRC Cause No. 477 of 2016
  • Joseph Kibii Siele v Telkom Kenya Ltd
    ELRC Misc. Application No. 9 of 2017
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010; sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 & 4 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Duncan N Nderitu & 55 others v Telkom Kenya Limited [2021] KEELRC 1226 (KLR)", Case Analysis (2021). ELRC Miscellaneous Application No. 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1226/eng@2021-07-20

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