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ELRCDismissedNot stated in the judgment· [2023] KEELRC 475 (KLR)

Maina v Attorney General & another (Cause E1408 of 2018) [2023] KEELRC 475 (KLR)

Employment and Labour Relations Court
23 February 2023
MNMathews N
527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nairobi refused to let a worker sue the Attorney General years after the six-year deadline for his dismissal claim had expired.

What this practically means

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Executive summary

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The respondent, the Attorney General, faced an ex parte originating summons dated June 3, 2022 by Michael M Maina, the applicant, seeking leave to file suit against the Attorney General out of the limitation period. The applicant asserted he was dismissed from employment on May 28, 2007, pursued an internal appeal within the Ministry, and issued a statutory notice before filing suit without first seeking leave to enlarge time. The respondent opposed through grounds of opposition dated July 18, 2022, arguing that Sections 27 and 28 of the Limitation of Actions Act do not provide for the order sought and that the application was an abuse of the court process, equity aiding only the vigilant. The court noted the underlying plaint was filed at the High Court claiming wrongful dismissal, terminal benefits and general damages. It held that the cause of action arose on May 28, 2007, before the Employment Act, 2007 came into effect in August 2008, so the applicable limitation law was the Limitation of Actions Act, Cap 22, allowing six years from accrual of the cause of action for employment contract claims. The court found the application to have been filed without justification and to have caused unnecessary delay. It dismissed the application but directed that the suit be heard on its merits on a priority basis. The judgment does not name any decided cases, and no costs order beyond costs in the cause was recorded.

Key legal issues

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01

Whether leave to file suit out of time should be granted for a dismissal claim

Holding

The application for leave was dismissed as unjustified; the underlying suit was to proceed to hearing on the merits on a priority basis

Reasoning

The cause of action arose on May 28, 2007, before the Employment Act, 2007 came into force in August 2008, so the Limitation of Actions Act applied, allowing six years from the cause of action. The applicant filed suit on July 21, 2011 (or August 9, 2021 as asserted in the affidavit), well outside the period, and the court found the application had been filed without justification and caused unnecessary delay.

p. 2
02

The applicable limitation regime for a 2007 dismissal

Holding

The Limitation of Actions Act (Cap 22) governed, permitting employment contract claims within six years

Reasoning

Because the dismissal predated the coming into force of the Employment Act, 2007, the applicable limitation law was the Limitation of Actions Act, Cap 22, which allowed six years from accrual of the cause of action. This finding framed the futility of the leave application, which the court found was filed without justification and merely delayed the matter.

p. 2

Legal principles established

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  • Claims arising from an employment contract governed by the Limitation of Actions Act must be filed within six years from the date the cause of action arose

Court orders

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  1. 1.The application is dismissed
  2. 2.The suit be heard on its merits on a priority basis

Authorities

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Legislation

  • Limitation of Actions ActSections 27 and 28; Cap 22 Laws of Kenya
  • Employment Act2007 (came into effect August 2008)
Jurisdiction invoked
Ex parte originating summons for leave to file suit out of time under the 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, "Maina v Attorney General & another (Cause E1408 of 2018) [2023] KEELRC 475 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/475/eng@2023-02-23

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