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ELRCStruck OutNot stated in judgment· [2021] KEELRC 1655 (KLR)

Innocent Gateria Wambugu v Safaricom Kenya Limited [2021] KEELRC 1655 (KLR)

Employment and Labour Relations Court
27 May 2021
MNMATHEWS N. NDUMA
776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an unfair dismissal claim filed nearly six years late, confirming employment contract claims must be filed within three years.

What this practically means

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Executive summary

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The respondent filed a preliminary objection dated 9th July 2020 contending that the claimant's suit, filed on 24th December 2019, was time barred under Section 90 of the Employment Act, 2007. The claimant's case was that he was employed on 7th November 2011 and that his employment was wrongfully and unlawfully terminated on 31st January 2014. He sought payment in lieu of notice, service pay, one month's unpaid salary, sales incentives and compensation for unlawful dismissal. The court held that under Section 90, a suit based on an employment contract must be filed within three years of the accrual of the cause of action; three years from 31st January 2014 expired on 31st January 2018, so the suit filed in December 2019 was out of time by over two years. The court noted that the claimant had not sought enlargement of time and that the ELRC and Court of Appeal have consistently held that time cannot be enlarged for contract-based claims. Following the Court of Appeal decision in Attorney General and Another v Andrew Maina Githinji and Another [2016] eKLR, which the court was bound by, it found the cause of action arose on 31st January 2014 and the suit was filed more than five years later. The court held it lacked jurisdiction to entertain the time-barred suit and struck it out for want of jurisdiction. Exercising discretion guided by the Lilian 'S' Case, the court ordered each party to bear their own costs, the matter having been determined at the outset. The ruling was delivered online pursuant to COVID-19 pandemic directions with the parties' consent, waiving Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Limitation under Section 90 of the Employment Act, 2007

Holding

The suit was filed more than five years after termination, far outside the three-year limitation period, and was therefore time barred

Reasoning

Section 90 requires that civil actions arising out of the Employment Act or a contract of service be commenced within three years of the act complained of. The cause of action arose on 31st January 2014 when employment was terminated; three years expired on 31st January 2018. The suit was filed on 24th December 2019, over five years after termination. The claimant did not seek leave for enlargement of time, which in any event is unavailable for contract-based claims.

p. 1
02

Jurisdiction over time-barred suits

Holding

Lacking jurisdiction over a time-barred claim, the court struck the suit out

Reasoning

Limitation extinguishes the court's jurisdiction to entertain the claim. The court, bound by the Court of Appeal decision in Attorney General and Another v Andrew Maina Githinji and Another, found the claim time barred by a long margin and consequently struck out the suit for want of jurisdiction rather than dismissing it on the merits.

p. 2
03

Enlargement of time

Holding

No enlargement of time was sought and none is available for contract-based claims

Reasoning

The claimant never sought leave for enlargement of time within which to file the suit, so the question did not arise. The court reiterated the settled position that extension of time is not granted for claims founded on contract, as distinct from statutory claims.

p. 1

Legal principles established

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  • Claims based on employment contract must be filed within the three-year limitation period under Section 90 of the Employment Act, 2007, and enlargement of time shall not be granted in claims based on contract
  • A court lacks jurisdiction to entertain a suit filed outside the statutory limitation period

Court orders

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  1. 1.The suit is struck out for want of jurisdiction to hear and determine it
  2. 2.Each party to bear their own costs of the suit
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation) — original jurisdiction of the Employment and Labour Relations Court

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, "Innocent Gateria Wambugu v Safaricom Kenya Limited [2021] KEELRC 1655 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1655/eng@2021-05-27

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