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ELRCDismissedNot stated in judgment· [2022] KEELRC 1046 (KLR)

Gekondo Omari Claimant v Ministry of Industry, Trade and Co-operative & 2 others [2022] KEELRC 1046 (KLR)

Employment and Labour Relations Court
21 January 2022
2,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it cannot extend the three-year deadline for employment claims, dismissing a retired worker's application to sue late.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) on a notice of motion dated 31st March 2021 in which the Applicant sought leave to file suit out of time against the Respondents and an extension of the limitation period. The Applicant, a former employee of the Ministry since 1974 who retired in 2005, alleged that the 1st Respondent verbally promised for some fifteen years to pay his retirement benefits, thereby lulling him past the limitation period, and that sickness, financial constraint and ignorance of timelines excused the delay; he invoked Article 159(2)(d) of the Constitution. The court examined Section 90 of the Employment Act, which bars claims arising from the Employment Act or contracts of service unless filed within three years, and noted that the Limitation of Actions Act permits extension only for disability, acknowledgment, part payment, fraud, mistake or ignorance of material facts, none of which applied. Relying on Divecon Ltd v Samani, Beatrice Kahai Adagala v Postal Corporation of Kenya, Kenya Civil Aviation Authority v WK, Raila Odinga v IEBC and IGA v Makerere University, the court held that limitation provisions are substantive, go to jurisdiction, and cannot be extended in contract claims; Article 159(2)(d) addresses only procedural technicalities and cannot cure a statutory bar. The application was dismissed with no express costs order. The judgment was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the court can extend the limitation period for an employment claim

Holding

The court has no jurisdiction to grant leave to file suit out of time; Section 90 of the Employment Act is a mandatory substantive bar

Reasoning

Section 90 of the Employment Act prescribes a three-year limitation period for claims arising out of the Employment Act or contracts of service. The Limitation of Actions Act allows extension only for disability, acknowledgment, part payment, fraud, mistake or ignorance of material facts, none of which applied. Binding Court of Appeal authority holds the limitation period is never extended in contract claims, and a court cannot entertain what statute forbids.

p. 2
02

Whether Article 159(2)(d) overrides the limitation bar

Holding

No - Article 159(2)(d) addresses procedural technicalities only and cannot displace substantive limitation law

Reasoning

The court applied Supreme Court and Court of Appeal authority holding that limitation provisions are substantive, go to jurisdiction, and that Article 159(2)(d) was never meant to oust compliance with procedural and statutory imperatives. Timelines mandated by statute are constitutionally sound and not mere technicalities, so the Applicant could not rely on the overriding objective to bypass them.

p. 3

Legal principles established

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  • No civil action arising out of the Employment Act or a contract of service may be instituted beyond three years after the act, neglect or default complained of, and the limitation period cannot be extended in contract claims
  • Article 159(2)(d) does not oust the obligation to comply with substantive statutory limitation periods

Court orders

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  1. 1.The application dated 31st March 2021 is dismissed

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159, Article 159(2)(d), Article 48
  • Employment ActSection 90
  • Limitation of Actions Act (Cap. 22)Sections 4(1), 22, 23, 26, 27, 28
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (9)

  • Divecon Ltd v Shirkhand Sandrudin Samani
    Civil Appeal No. 142 of 1997
  • Dhanesvar Mehta v Manila M. Shah
    [1965] EA 321
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Kenya Civil Aviation Authority v WK & 2 Others
    [2019] eKLR
  • Raila Odinga v Independent Electoral and Boundaries Commission & Others
    [2013] eKLR
  • Haron Onyancha v National Police Service Commission & Another
    [2017] eKLR
  • IGA v Makerere University
    [1972] EA 65
  • Josephat Ndirangu -vs- Henkel Chemicals (EA) Limited
    [2013] eKLR
  • Mumo Matemu case
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Section 90 of the Employment Act; Limitation of Actions Act (Cap. 22)

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, "Gekondo Omari Claimant v Ministry of Industry, Trade and Co-operative & 2 others [2022] KEELRC 1046 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1046/eng@2022-01-21

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