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ELRCStruck Out· [2021] KEELRC 1984 (KLR)
Christopher Mung’oma Wasike v National Social Security Fund [2021] KEELRC 1984 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court struck out a retirement benefits claim filed nearly five years late, confirming the strict three-year deadline under Section 90 of the Employment Act.
What this practically means
#Executive summary
#The Claimant sued the Respondent on 27th February 2020, alleging he was employed under employment No. 2777 from 7th February 2011 to 1st May 2015 and had been offered a Voluntary Early Retirement Scheme on 22nd April 2014. The Respondent, through Counsel Mr. Anthony Kilonzo, filed a preliminary objection contending that the suit was statute barred under Section 90 of the Employment Act and that the Court therefore lacked jurisdiction. It relied on the Supreme Court advisory opinion in The Matter of the Interim Independent Electoral Commission and the High Court decisions in Fred Mudave Gogo v G4S Security Services (K) Ltd, Maria Machocho v Total Kenya Limited and Nicodemus Marani v Timsales Limited, urging that there was no jurisdiction to extend time and that the claim should be struck out. The Court noted that Section 90 requires civil actions arising out of the Employment Act or a contract of service to be commenced within three years of the act complained of, unless the injury is continuing, in which case twelve months run from cessation. The cause of action had accrued on 1st May 2015, nearly five years before filing. Holding the objection well taken, the Court struck out the suit as an abuse of the Court process for having been filed out of time, in a ruling delivered at Nairobi on 3rd March 2021.
Key legal issues
#01
Whether the suit is time barred under Section 90 of the Employment Act
Holding
The suit is time barred and the court lacks jurisdiction, warranting striking out
Reasoning
The cause of action accrued on 1st May 2015 when employment ended, but the suit was filed on 27th February 2020, almost five years later. Section 90 requires such suits to be commenced within three years of the act complained of. The preliminary objection was upheld and the claim struck out as an abuse of court process.
p. 2
Legal principles established
#- A claim based on the Employment Act or a contract of service must be commenced within three years of the act, neglect or default complained of, failing which the court has no jurisdiction and the suit is an abuse of process
Court orders
#- 1.The Claimant's suit is struck out for being an abuse of the Court process, having been filed out of time
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; objection founded on Section 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Mung’oma Wasike v National Social Security Fund [2021] KEELRC 1984 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1984/eng@2021-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.