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ELRCDismissedNot stated in the judgment provided· [2022] KEELRC 764 (KLR)

Lawrence Gachau Kihu v County Government of Nairobi [2022] KEELRC 764 (KLR)

Employment and Labour Relations Court
22 February 2022
OKOcharo Kebira
1,097 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out an employee's claim filed over 15 years late, confirming that employment claims must be filed within three years.

What this practically means

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Executive summary

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The claimant, a former employee of the respondent council with 29 years of service, sued for compensation for premature retirement, payment of a medallion, compensation for 1,507 off-duty days, general damages, interest and costs. The respondent entered appearance and filed a notice of preliminary objection dated 19th September 2016, contending that under section 90 of the Employment Act, 2007 the claim, filed on 20th July 2016, was time barred. The court directed that the objection be canvassed by written submissions; the claimant did not file submissions. The court framed two issues: whether the objection was properly taken, and whether the claim was time barred. Relying on Mukisa Biscuit Manufacturing Co. Limited vs West End Distributor Limited, the court held the objection raised a pure point of law requiring no factual ascertainment and was properly taken. On limitation, the court held that section 90 of the Employment Act ousted section 4(1) of the Limitation of Actions Act for employment claims and reduced the limitation period from six to three years, citing Ndirangu vs Henkel Chemicals E.A. Limited. The act complained of occurred on 31st December 2001, so the claim should have been filed by about 2004; filing over 15½ years later was out of time. The court also observed that the Employment Act was not intended to revive claims extinguished by limitation. The claim was dismissed with costs to the respondent. Judgment delivered virtually at Nairobi on 22nd February 2022 by Ocharo Kebira, Judge.

Key legal issues

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01

Whether the preliminary objection meets the Mukisa Biscuit threshold

Holding

It is a pure point of law based on a statute (limitation), requiring no ascertainment of facts, and is therefore properly taken

Reasoning

Applying Law J.A.'s and Sir Charles Newbold P.'s formulations in Mukisa Biscuit, the objection rests solely on section 90 of the Employment Act. It does not depend on facts requiring evidence or on judicial discretion, since the date of the act complained of is pleaded in the claim itself. The objection therefore qualifies as a properly taken preliminary objection on a point of law.

p. 2
02

Whether the claim is time barred under section 90 of the Employment Act

Holding

Yes - the cause of action arose on 31st December 2001 and the claim was filed on 20th July 2016, more than 15½ years later, far beyond the three-year period

Reasoning

Section 90 reduces limitation for employment claims from six to three years and displaces section 4(1) of the Limitation of Actions Act. The premature retirement occurred on 31st December 2001, so the claim should have been filed by about 2004. Filing in July 2016 was grossly out of time, and the legislature did not intend the Act to revive claims already extinguished by limitation.

p. 2

Legal principles established

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  • Section 90 of the Employment Act ousts section 4(1) of the Limitation of Actions Act for employment claims and prescribes a three-year limitation period
  • The limitation period runs from the date of the act, neglect or default complained of, not from the date of filing

Court orders

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  1. 1.The claimant's claim is dismissed with costs.

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Limitation of Actions Act (Cap 22)section 4(1)

Cases cited (3)

  • Mathew Kamau Mwaura vs Permanent Secretary Office of the President Provincial Administration & 2 others
    [2018] eKLR
  • Mukisa Biscuit Manufacturing Co. Limited vs West End Distributor Limited
    [1960] E.A. 696
  • Ndirangu vs Henkel Chemicals E.A. Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising from contract of service); determined on preliminary objection under 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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Later judgments citing this (2)

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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, "Lawrence Gachau Kihu v County Government of Nairobi [2022] KEELRC 764 (KLR)", Case Analysis (2022). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/764/eng@2022-02-22

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