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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 574 (KLR)

Equator Bottlers Limited v Gatobu (Appeal E058 of 2021) [2023] KEELRC 574 (KLR)

Employment and Labour Relations Court
9 March 2023
CBChristine N. Baari
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employment claims must be filed within three years of dismissal, and negotiating with your former employer does not pause that deadline.

What this practically means

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Executive summary

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This is a first appeal in the Employment and Labour Relations Court at Kisumu against a Trial Court ruling of December 10, 2021, dismissing the Appellant's preliminary objection that the Respondent's employment claim was statute barred under Section 90 of the Employment Act. The Respondent was terminated on January 4, 2017 and filed his claim on January 16, 2020, twelve days beyond the three-year limitation period. The Appellant argued the claim was time barred, that the Respondent lacked capacity to sue, and that no court could extend the statutory limitation for contract of service claims. The Respondent supported the Trial Court's view that unpaid terminal dues constituted a continuing injury, and argued the preliminary objection could not be determined without investigating facts. Baari J, re-evaluating the record as a first appeal, held that continued negotiations for payment did not stop time from running; the termination was a completed act and not a continuing injury; and extension of time is only available for tort claims, not contracts of service, leaving no discretion to admit the out-of-time claim. The claim being statute barred, the Respondent had no capacity to sue and the Trial Court lacked jurisdiction to entertain it. The court allowed the appeal, upheld the preliminary objection, struck out the Respondent's claim in the lower court, and ordered each party to bear their own costs. Judgment delivered on March 9, 2023.

Key legal issues

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01

Whether the Respondent's claim was statute barred under Section 90 of the Employment Act

Holding

Yes; the claim filed on January 16, 2020 was twelve days beyond the three-year period running from termination on January 4, 2017, and the Respondent thus had no capacity to sue

Reasoning

The court applied Section 90 of the Employment Act, holding that the three-year limitation runs from accrual of the cause of action (termination). Filing twelve days out of time meant the right to sue had lapsed, following G4S Security Services, and a court without jurisdiction over a time-barred claim must down its tools.

p. 4
02

Whether the claim constituted a continuing injury

Holding

No; termination was a completed act, not an injury still in the process of being committed

Reasoning

Applying Black's Law Dictionary definition, the court found the January 4, 2017 termination was a single completed act. Unpaid terminal dues demanded after termination did not amount to a continuing injury; even if it were one, the one-year period from cessation had long expired.

p. 4
03

Whether the Trial Court had discretion to extend the statutory limitation period

Holding

No; extension of time applies only to tort claims, not contract of service claims

Reasoning

Following John Kiiru Njiiri v University of Nairobi, the court held that neither the ELRC nor the Trial Court can extend time under Section 90 for contract-based employment claims. A claim filed out of time is a nullity and deprives the court of jurisdiction, per Owners of Motor Vessel Lilian 's.

p. 4

Legal principles established

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  • Extension of time under Section 90 of the Employment Act is only available for claims founded on tort, not contracts of service
  • A claim under Section 90 of the Employment Act must be instituted within three years of accrual, and within twelve months of cessation for a continuing injury
  • Continued demands or negotiation by a terminated employee do not stop the running of the limitation period

Court orders

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  1. 1.The Appellant's Preliminary Objection is upheld
  2. 2.The Respondent's claim before the lower court is struck out
  3. 3.Parties shall bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 90
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Limitation of Actions ActSection 4(1)

Cases cited (10)

  • John Kiiru Njiiri v University of Nairobi
    (2021) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Others
    (2018) eKLR
  • Maria Machocho v Total Kenya Limited
    (2013) eKLR
  • Oraro v Mbaja
    (2005) eKLR
  • Mukisa Biscuits case
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Benjamin Wachira Ndiithi v Public Service Commission & Another
    (2014) eKLR
  • Peris Maina v Nairobi City Water & Sewerage Company Limited
    (2018) eKLR
  • Hilarion Mwabolo v Kenya Commercial Bank
    (2013) eKLR
  • Owners of Motor Vessel Lilian "s" v Caltex Oil(K) Limited
    (1989) KLR 1
On appeal from
Trial Court (magistrates' court, ELRC subordinate)
Not stated in judgment
Jurisdiction invoked
First appeal from the Trial Court under the Employment and Labour Relations Court's appellate jurisdiction (statutory provision not cited in the judgment)

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, "Equator Bottlers Limited v Gatobu (Appeal E058 of 2021) [2023] KEELRC 574 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/574/eng@2023-03-09

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