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ELRCOtherE437/2021 (lead file); also E438/2021, E49/2021, E541/2021, 452/2021, 453/2021, 454/2021 and E459/2021· [2022] KEELRC 766 (KLR)

Joseph Mejala Peralta v Vigelo and Gero Construction Company Limited (VGCL) [2022] KEELRC 766 (KLR)

Employment and Labour Relations Court
21 February 2022
JGJacob Gakeri
2,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed eight claims for unpaid salaries because they were filed more than three years late, ruling that an employer's written acknowledgment cannot revive a time-barred employment claim.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 19 July 2021 against eight consolidated employment claims, with Claim No. E437/2021 as the lead file. All Claimants were employed on 28 November 2014 and claimed unpaid salaries, with February 2016 as the last month claimed. The Respondent argued the suits were filed contrary to Section 90 of the Employment Act, which requires employment claims to be commenced within three years, and were therefore incompetent and an abuse of process. The Claimants opposed, contending the Respondent had expressly acknowledged the debt of USD 10,584 by letter dated 18 November 2020, which under Section 23 of the Limitation of Actions Act gave the cause of action a new lease of life, and that the objection failed the Mukhisa Biscuit threshold as it depended on facts. The court framed a single issue: whether the action was statute barred. It found the cause of action arose in February 2016 and three years lapsed in February 2019, yet the claim was filed on 26 May 2021. The authorities on acknowledgment relied on by the Claimants concerned ordinary debts and predated the Employment Act; acknowledgment under Section 23(3) does not create a fresh cause of action but only extends accrual. Section 90 is unambiguous and deprives the Court of jurisdiction over time-barred employment suits. The preliminary objection met the Mukhisa Biscuit threshold, being grounded on pure points of law. The objection was upheld and the suits dismissed with costs.

Key legal issues

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01

Whether an acknowledgment of a time-barred employment claim revives it under Section 23 of the Limitation of Actions Act

Holding

No - Section 90 of the Employment Act is unambiguous and mandatory; acknowledgment decisions relied on by the Claimant concerned ordinary debts, not employment relationships, and do not overcome Section 90

Reasoning

The cause of action arose in February 2016 and the three-year period lapsed in February 2019. The claim was filed on 26 May 2021. The authorities relied on by the Claimant (Shire, Telkom Kenya) were decided before the Employment Act and relate to debt recovery, not employment. Section 90 is clear that no employment action shall be instituted unless commenced within three years.

p. 4
02

Whether the preliminary objection meets the Mukhisa Biscuit threshold

Holding

Yes - it raises pure points of law, namely jurisdiction and limitation

Reasoning

The Claimant contended the objection depended on facts but provided no particulars. Limitation is expressly cited in Mukhisa Biscuit as a proper preliminary objection. The objection, being on jurisdiction and limitation, may dispose of the suit without resort to disputed facts.

p. 4

Legal principles established

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  • The Court has no jurisdiction to entertain an employment suit filed outside the three-year period in Section 90 of the Employment Act
  • Acknowledgment of a statute-barred debt under Section 23(3) of the Limitation of Actions Act does not create a fresh cause of action but only extends the accrual date

Court orders

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  1. 1.Preliminary objection upheld; suit dismissed as statute barred under Section 90 of the Employment Act

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap 22)Sections 4(1), 23(3)
  • Employment and Industrial Relations ActSection 15
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d), Article 48

Cases cited (10)

  • Mukhisa Biscuit Manufacturers Ltd. v West End Distributors Ltd.
    [1969] E.A. 696
  • Owners of Motor vessel "Lillian" v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others
    S.C Application No. 2 of 2012
  • Fred Mudave Gogo v G4s Security Services (K) limited
    [2014] eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Rift Valley Railways (Kenya) LTD v Hawkins Wagunza Musonye & Another
    [2016] eKLR
  • Shire v Thabiti Finance Co. Ltd
    [2002] 1 EA 279
  • Oraro v Mbaja
    [2005] eKLR
  • Telkom Kenya Limited v Kenya Railways Corporation
    [2018] eKLR
  • Kamconsult Limited v Telcom Kenya Limited & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; objection founded on Section 90 of the Employment Act, 2007

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, "Joseph Mejala Peralta v Vigelo and Gero Construction Company Limited (VGCL) [2022] KEELRC 766 (KLR)", Case Analysis (2022). E437/2021 (lead file); also E438/2021, E49/2021, E541/2021, 452/2021, 453/2021, 454/2021 and E459/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/766/eng@2022-02-21

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