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ELRCDismissedCause No 458 of 2017· [2022] KEELRC 1480 (KLR)

Wamaitha v Lexis International Limited (Cause 458 of 2017) [2022] KEELRC 1480 (KLR)

Employment and Labour Relations Court
31 May 2022
OKOcharo Kebira
793 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 dismissed an employee's Kshs 172,000 claim because it was filed more than three years after termination, missing the Employment Act's strict deadline.

What this practically means

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Executive summary

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The claimant sued the respondent by memorandum of claim dated March 7, 2017, seeking Kshs 172,000 in terminal dues, costs, interest, and a certificate of service, alleging that his employment commenced in February 2012 and was terminated on February 11, 2014 on grounds of lack of work. The respondent denied the claim. The matter was heard on March 15, 2022, and the parties were directed to file written submissions but did not. Although neither party pleaded or canvassed limitation, the court, in preparing judgment, raised the issue of its own motion, holding that a jurisdictional question could not be ignored without abdicating its duty. Relying on section 90 of the Employment Act and on its earlier decision in Lawrence Gachau Kihu v County Government of Nairobi (which in turn relied on Ndirangu v Henkel Chemical E A Limited), the court held that section 90 ousted section 4(1) of the Limitation of Actions Act and reduced the limitation period for employment claims from six years to three years. Since the pleaded and testified termination date was February 11, 2014 and the claim was filed on March 8, 2017, it was time-barred at filing. The claim was accordingly dismissed in its entirety. The judgment was delivered virtually pursuant to COVID-19 pandemic directions, guided by Articles 159(2)(d) and 48 of the Constitution and section 1B of the Civil Procedure Act. No express costs order was recorded.

Key legal issues

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01

Whether the claim was time-barred under section 90 of the Employment Act

Holding

Yes. The termination occurred on February 11, 2014 and the claim was filed on March 8, 2017, outside the three-year limitation period, so the claim was time-barred at filing and was dismissed.

Reasoning

The court noted that the limitation issue went to jurisdiction and, though not pleaded or argued by the parties, could not be ignored. Relying on its prior decision in Lawrence Gachau Kihu v County Government of Nairobi, it held that section 90 of the Employment Act ousted section 4(1) of the Limitation of Actions Act and reduced the limitation period for employment claims from six years to three years. The pleading and testimony both fixed termination on February 11, 2014, making the March 8, 2017 filing time-barred.

p. 2

Legal principles established

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  • No civil action or proceedings based on the Employment Act or a contract of service shall be instituted unless commenced within three years of the act, neglect or default complained of
  • A claim filed outside the statutory three-year period under section 90 of the Employment Act is time-barred at filing and liable to dismissal
  • A court must raise and determine a jurisdictional issue such as limitation of its own motion even where the parties did not plead or canvass it

Court orders

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  1. 1.The claimant's claim is dismissed for being time-barred under section 90 of the Employment Act
  2. 2.Judgment dated and signed virtually at Nairobi on May 31, 2022; a signed copy to be availed to each party upon payment of Court fees

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap 22)Section 4(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Lawrence Gachau Kihu -vs- County Government of Nairobi
    NBI ELRC No. 1456 of 2016
  • Ndirangu vs Henkel Chemical E A Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; limitation governed by 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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Cite this brief

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Cite this brief

Caselaw, "Wamaitha v Lexis International Limited (Cause 458 of 2017) [2022] KEELRC 1480 (KLR)", Case Analysis (2022). Cause No 458 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1480/eng@2022-05-31

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