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ELRCStruck OutCause No 2 of 2020· [2022] KEELRC 1609 (KLR)

Mutua v Kenya Ports Authority (Cause 2 of 2020) [2022] KEELRC 1609 (KLR)

Employment and Labour Relations Court
28 July 2022
ANAgnes Kitiku Nzei
2,537 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 struck out a claim for dues from 2002 because filing it 17 years late took away its power to hear it.

What this practically means

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Executive summary

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The Claimant, a former Kenya Ports Authority employee who retired on 10th November 2019, sued for Ksh. 1,635,118 in unpaid dues - gratuity, overtime, rest days, salary underpayment, house and holiday allowances, accrued leave, ofi days, leave allowance and meals allowance - all allegedly accruing during the period he worked as a casual labourer from June 1997 to November 2002. He also sought a declaration of continuous employment from 1997 to 2019 and a certificate of service. The Respondent resisted the claim, pleading that as a casual the Claimant earned no leave or gratuity under Staff Regulation C.13, that contract-phase gratuity had been paid save for a period for which the Claimant had not completed gratuity forms, and that the suit offended the twelve-month limitation in section 66 of the Kenya Ports Authority Act (cap 391). The Court framed two issues: whether the claim was statute barred, and entitlement to reliefs. It found the cause of action arose on 11th November 2002 when the casual engagement lapsed; the Claimant's November 2002 letter was neither served nor acted on, and suit was filed only on 24th January 2020, over seventeen years later. The non-payment was held not to be a continuing injury. Applying the Court of Appeal in Kenya Ports Authority v Cyrus Maina Njoroge and the Supreme Court in Samuel Kamau Macharia, the Court held it had no jurisdiction over a time-barred claim. The suit was struck out with no order as to costs. The Court noted the Respondent's admission of unpaid gratuity of about Ksh. 204,580 for December 2011 to December 2013, but the Claimant had not claimed that sum in the suit.

Key legal issues

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01

Whether the claim for dues arising from the casual employment phase was statute barred

Holding

Yes - barred under section 66(b) of the Kenya Ports Authority Act and section 90 of the Employment Act, the cause of action having arisen on 11th November 2002 and suit filed only on 24th January 2020

Reasoning

The cause of action arose when the casual engagement lapsed on 11th November 2002; the Claimant wrote on 18th November 2002 requesting dues but never served the letter or instituted proceedings within twelve months. The alleged non-payment was not a continuing injury ceasing on retirement, so the claim filed over seventeen years later was time barred.

p. 4
02

Whether the Court could nonetheless grant the reliefs sought

Holding

No - the Court lacks jurisdiction over a statute-barred claim

Reasoning

Relying on the Supreme Court's decision in Samuel Kamau Macharia, jurisdiction flows only from the Constitution or legislation and cannot be assumed; a statutory time bar goes to jurisdiction, not mere procedural technicality. Consequently the Court declined to determine entitlement to the reliefs.

p. 5

Legal principles established

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  • A cause of action arising on termination of casual employment is not a continuing injury for purposes of limitation; time begins to run when the casual engagement lapses
  • Once a claim is statute-barred, the court lacks jurisdiction to entertain it and must decline to determine the merits

Court orders

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  1. 1.The Claimant's suit is struck off for being statute barred, with no order as to costs

Authorities

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Legislation

  • Kenya Ports Authority Act (cap 391)section 66, including 66(a) and 66(b)
  • Employment Act 2007section 90

Cases cited (2)

  • Kenya Ports Authority -vs- Cyrus Maina Njoroge
    [2018] eKLR
  • Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under statute; limitation challenged under section 66 of the Kenya Ports Authority Act (cap 391) and 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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Cite this brief

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Cite this brief

Caselaw, "Mutua v Kenya Ports Authority (Cause 2 of 2020) [2022] KEELRC 1609 (KLR)", Case Analysis (2022). Cause No 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1609/eng@2022-07-28

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