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ELRCDismissedOriginating Summons dated 3rd September 2013· [2022] KEELRC 360 (KLR)

Dedan N. Wanjohi v Kenya Revenue Authority & another [2022] KEELRC 360 (KLR)

Employment and Labour Relations Court
24 March 2022
ANAgnes Kitiku Nzei
1,903 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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Kenya's Employment Court confirmed it cannot extend the three-year deadline for filing employment claims, no matter how sympathetic the reasons for delay.

What this practically means

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Executive summary

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The Applicant, a former Accounts Assistant with the Customs and Excise Department and later Kenya Revenue Authority, sought leave to file suit out of time claiming terminal benefits and general damages for malicious prosecution following his summary dismissal on 25th July 2001 (communicated by letter dated 18th June 2003) and his subsequent acquittal on 9th June 2007 of theft and false accounting charges. He explained the delay by reference to his wife's illness, the financial and emotional toll of the criminal proceedings, and instructions given to advocates in 2010 that were not acted upon. The 1st Respondent opposed, arguing inordinate and unexplained delay and that Section 90 of the Employment Act, 2007 bars claims not filed within three years and leaves the court no discretion to extend time. The court framed a single issue: whether it had jurisdiction to grant the orders sought. Relying on Samuel Kamau Macharia v KCB on jurisdiction, and Beatrice Kahai Adagala on Section 90, the court held that Section 30... rather, that Section 90 is couched in mandatory terms, pegs limitation at three years, and excludes Section 4(1) of the Limitation of Actions Act, leaving no room for extension in employment or contract of service claims. The intended malicious prosecution claim against the DPP fared no better, being subject to the twelve-month limitation in Section 3(1) of the Public Authorities Limitation Act, non-extendable for claims not based on negligence, nuisance or breach of duty. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the ELRC has jurisdiction to grant leave to file suit out of time in a claim arising out of the Employment Act or a contract of service

Holding

It does not; Section 90 of the Employment Act is mandatory and admits no extension of time for such claims

Reasoning

The court held that termination was communicated on 18th June 2003, when the cause of action accrued and time began running. Section 90 of the Employment Act, 2007 expressly disapplies Section 4(1) of the Limitation of Actions Act and mandatorily pegs limitation at three years without provision for extension. Being statute-barred, the court lacks discretion to enlarge time regardless of the sympathy the delay might attract.

p. 3
02

Whether the intended malicious prosecution claim against the DPP could be saved

Holding

No; such claim is governed by the twelve-month limitation in Section 3(1) of the Public Authorities Limitation Act, which cannot be extended for claims not based on negligence, nuisance or breach of duty

Reasoning

The applicant intended to also sue the Director of Public Prosecutions for damages for malicious prosecution. Section 3(1) of the Public Authorities Limitation Act bars tort proceedings against government after twelve months. Section 6 of that Act read with Section 27 of the Limitation of Actions Act permits extension only for claims founded on negligence, nuisance or breach of duty, none of which applies to malicious prosecution.

p. 3

Legal principles established

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  • A court can only exercise jurisdiction conferred by the Constitution or written law and cannot arrogate to itself jurisdiction exceeding that conferred by law
  • Section 90 of the Employment Act, 2007 is in mandatory terms; claims arising out of the Act or a contract of service must be filed within three years and the period cannot be extended
  • Limitation periods in contract-based employment claims cannot be extended; extension is available only in tort claims under Sections 27 and 28 of the Limitation of Actions Act
  • Proceedings founded on tort against the government or a local authority must be brought within twelve months under Section 3(1) of the Public Authorities Limitation Act, and that period is not extendable for claims not based on negligence, nuisance or breach of duty

Court orders

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  1. 1.The Applicant's application for leave to file suit out of time is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Penal CodeSections 275, 13, 210
  • Employment ActSection 90
  • Limitation of Actions ActSections 4(1), 27, 28
  • Public Authorities Limitation Act (Cap 39)Sections 3(1), 6

Cases cited (5)

  • SAMUEL KAMAU MACHARIA –VS- KCB & 2 OTHERS
    Civil Application No. 2 of 2011
  • BEATRICE KAHAI ADAGALA –VS- POSTAL CORPORATION OF KENYA
    [2015] eKLR
  • Peter Katithi Kithome –vs- Laboratory & Allied
    [2021] eKLR
  • DIVECON LIMITED –VS- SAMANI
    [1995-1998] 1 EA 48
  • Josephat Ndirangu –vs- Henkel Chemicals Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (cause arising out of contract of service); application originally filed in the High Court and transferred vide the High Court's Ruling dated 15th May 2014

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, "Dedan N. Wanjohi v Kenya Revenue Authority & another [2022] KEELRC 360 (KLR)", Case Analysis (2022). Originating Summons dated 3rd September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/360/eng@2022-03-24

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