Barasa v Kenya Private Sector Alliance (Cause E316 of 2022) [2023] KEELRC 136 (KLR)
The bottom line
#A Kenyan employee's constructive dismissal claim failed because she filed one month past the strict three-year limit for employment cases.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection as a pure point of law
The objection met the Mukisa Biscuits requirements: it was a point of law on limitation, self-evident from the pleadings, requiring no evidence, and capable of disposing of the whole suit
Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors, the court noted the facts underpinning the objection (resignation date and filing date) were not contested by either party. Limitation was expressly identified as a point of law, and if sustained the entire suit would collapse.
When the cause of action arose and whether the claim was time barred
The cause of action arose on April 18, 2019, the date of resignation; the suit filed May 17, 2022 was about one month out of time and therefore time barred
The claim was founded on constructive dismissal arising from the resignation of April 18, 2019. A resignation takes effect on tender. Section 90 requires employment claims to be filed within three years. The proviso on continuing injury did not apply because the cause of action was termination, not a continuing injury.
Whether the time bar under section 90 can be circumvented through tort or constitutional framing
No - section 90 excludes the Limitation of Actions Act, and no constitutional relief was properly pleaded; constitutional avoidance applies
The Claimant cited constitutional provisions but sought no constitutional relief; under the Anarita Karimi Njeru standard and rule 7 of the ELRC Procedure Rules, a constitutional petition requires precise pleading. The court invoked constitutional avoidance to prevent litigants disguising stale claims as constitutional disputes.
Effect of time bar on jurisdiction
A time-barred suit cannot be entertained; the court has no jurisdiction
Relying on Anaclet Kalia Musau v Attorney General & 2 Others, the court held that limitation goes to jurisdiction. Having found the suit time barred, the court was powerless to entertain it and struck it out.
Legal principles established
#- A resignation takes effect when tendered, unless otherwise stated, and does not depend on acceptance by the employer
- The three-year limitation period under section 90 of the Employment Act cannot be extended by the court
- Section 90 of the Employment Act precludes application of the Limitation of Actions Act to employment contract claims
- Citing a constitutional provision in a claim does not convert an ordinary civil claim into a constitutional petition; constitutional relief must be pleaded with precision
- A limitation defence goes to jurisdiction; a time-barred suit ousts the court's jurisdiction
- Courts should apply constitutional avoidance and refuse to allow litigants to disguise stale claims as constitutional matters
Court orders
#- 1.The suit as filed by the Claimant is time barred
- 2.The court has no jurisdiction to entertain the suit
- 3.The case is struck out with costs to the Respondent
- Jurisdiction invoked
- Jurisdiction of the ELRC over employment and labour relations matters; the court found it lost jurisdiction over a time-barred claim under section 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa v Kenya Private Sector Alliance (Cause E316 of 2022) [2023] KEELRC 136 (KLR)", Case Analysis (2023). Cause No E316 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/136/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.