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ELRCStruck Out· [2023] KEELRC 381 (KLR)

Mwei v National Cereals & Produce Board (Employment and Labour Relations Cause E004 of 2022) [2023] KEELRC 381 (KLR)

Employment and Labour Relations Court
3 February 2023
1,033 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 wrongful dismissal claim filed six years late, confirming employment claims must be filed within three years—no extensions allowed.

What this practically means

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Executive summary

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The Claimant, Susan Chemutai Mwei, filed a statement of claim dated March 16, 2022 together with a Notice of Motion seeking enlargement of time so that the statement of claim, filed on March 22, 2022, could be deemed properly on record. The claim was for unlawful termination, with the dismissal letter dated 8th February 2016. The Respondent filed a replying affidavit and a preliminary objection on April 28, 2022, arguing that the claim was statute-barred under Section 90 of the Employment Act, that the Claimant's right to sue had lapsed, and that the suit was an abuse of court process. The court framed a single issue: whether it had jurisdiction to enlarge time. It applied the Court of Appeal decision in Beatrice Kahai Adagala v Postal Corporation of Kenya, holding Section 90 of the Employment Act is in mandatory terms, and John Kiiru Njiiri v University of Nairobi, holding that the limitation period is never extended in employment contract claims, unlike tort claims under Sections 27 and 28 of the Limitation of Actions Act. The claimant's argument that time did not run because she sought a review, and that counsel's mistake should not be visited on the litigant, did not prevail. The court upheld the preliminary objection, struck out the claim as incompetent on account of limitation of time, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the court has jurisdiction to enlarge time under Section 90 of the Employment Act

Holding

Section 90 of the Employment Act is in mandatory terms; a claim based on a contract of employment must be filed within three years and the court has no jurisdiction to extend time

Reasoning

The claimant's cause of action accrued on the date of termination, 8th February 2016, as stated in the letter of dismissal. The statement of claim was filed on 22nd March 2022, over six years later, far beyond the three-year statutory window. The court applied the Court of Appeal's holding in Beatrice Kahai Adagala v Postal Corporation of Kenya that Section 90 is mandatory, and John Kiiru Njiiri holding that the limitation period is never extended in employment matters, unlike tort claims under Sections 27 and 28 of the Limitation of Actions Act.

p. 3

Legal principles established

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  • A claim based on a contract of employment must be filed within three years under Section 90 of the Employment Act, and that limitation period cannot be extended

Court orders

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  1. 1.The respondent's preliminary objection is upheld
  2. 2.The claimant's claim filed on March 22, 2022 is struck out as incompetent on account of limitation of time
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSections 4(1), 27, 28

Cases cited (8)

  • Peter Nyamai & 7 others v MJ Clarke Limited
    [2013] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Lydia Pamela Nyangala v Royal Media Services Ltd
    [2016] eKLR
  • Justine S Sunyai v Judicial Service Commission
    [2017] eKLR
  • Belinda Muras & 6 others v Amos Wainaina
    [1978] KLR
  • James Mugeria Igati v Public Service Commission
    [2014] eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act (inferred from court; judgment cites 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, "Mwei v National Cereals & Produce Board (Employment and Labour Relations Cause E004 of 2022) [2023] KEELRC 381 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/381/eng@2023-02-03

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