Butali Sugar Mills v Shari & another (Employment and Labour Relations Appeal E029 of 2022) [2023] KEELRC 589 (KLR)
The bottom line
#Kenya's Employment Court confirmed late-joined defendants can't be added after the 3-year employment claim deadline passes.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 90 of the Employment Act and joinder of the appellant by amendment
The original claim was filed within 3 years of termination, but the amended claim joining the appellant was filed outside the 3-year period without leave, so the claim against the appellant was statute-barred.
The termination occurred on 6th May 2017 and the statement of claim was filed on 4th May 2020, within the statutory period. The amendment joining the appellant was lodged in March 2022, after limitation had expired and after pleadings had closed, requiring leave under Order 8 rule 3 of the Civil Procedure Rules. No leave was sought or granted. Citing John Kiiri Njiiri, the court held it lacked power to extend time under section 90, and applying Fredrick M. Waweru and the English authorities (Liptons Cash Registers, Weldon v Neal, Mabro, Davis v Elsby), held that joining the new defendant would deprive it of the limitation defence. Proceedings against the appellant were deemed to begin only on service of summons in March 2022.
Territorial jurisdiction of the trial court
The trial magistrate did not confer jurisdiction on itself; and the issue of territorial jurisdiction was res judicata having been addressed by the court in a prior ruling transferring the suits to Butali Law Courts.
The magistrate's ruling expressly stated the court lacked power to transfer a case and that the correct procedure was an application in the High Court, so it did not confer jurisdiction on itself. Separately, on 2nd December 2022 the court had, in Bungoma ELRC Misc Application E009 of 2022, already ordered the transfer of the impugned suits to Butali Law Courts. The court therefore declined to revisit the merits of the territorial jurisdiction ground, holding the issue res judicata.
Principles on appeal from a trial court
An appeal from the trial court is by way of retrial; the appellate court re-evaluates the evidence while making allowance for not having seen or heard the witnesses.
The court adopted the settled principles in Selle v Associated Motor Boat Co Ltd, noting the impugned ruling involved matters of law and fact and that it would re-evaluate the law, facts and authorities relied on by the trial court in determining the preliminary objection. It also noted the trial court had erred in failing to address the limitation ground at all, warranting the court's own evaluation of that ground.
Legal principles established
#- Section 90 of the Employment Act is mandatory: employment claims must be filed within 3 years of the cause of action and the court has no jurisdiction to extend time
- An amendment joining a new defendant after expiry of the limitation period is not permitted without leave, and no leave can properly introduce a new party to a statute-barred claim
- Where a party is added after limitation has expired, proceedings against that party are deemed to begin on service of summons, so the defence of limitation is preserved
Court orders
#- 1.Appeal allowed; ruling of Hon. Hassan (CM) dated 31st August 2022 set aside
- 2.Notice of preliminary objection dated 15th June 2022 upheld by striking out the name of the appellant as joined in Kakamega CMCC Nos. 140, 72, 51, 81, 99, 104, 106 and 103 of 2020
- 3.Costs to the appellant at the trial court
- 4.Suits to proceed against the 2nd Defendant only
- 5.Each party to bear own costs in the appeal
- 6.Right of appeal in 30 days
- On appeal from
- Kakamega Chief Magistrate's Court
- Kakamega CMCC No. 140 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Employment and Labour Relations Court sub-registry/subordinate court (Kakamega CMCC/CMELRC No. 140 of 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omuhaka v Muraguri (Employment and Labour Relations Appeal E314 of 2025) [2026] KEELRC 2420 (KLR)[2026] KEELRC 2420 (KLR)20 Aug 2026
- William (Suing in his Behalf and on Behalf of 186 Former Employees of the Defunct Intercontinental Hotel, Mombasa) v Rao & 3 others (Petition E001 of 2025) [2025] KEELRC 1232 (KLR)[2025] KEELRC 1232 (KLR)30 Apr 2025
- Owenga v Musiara Limited (Cause E6455 of 2020) [2025] KEELRC 522 (KLR)[2025] KEELRC 522 (KLR)24 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Butali Sugar Mills v Shari & another (Employment and Labour Relations Appeal E029 of 2022) [2023] KEELRC 589 (KLR)", Case Analysis (2023). ELRCA No. 33 of 2022 (with directions applying to ELRCA Nos. 33, 26, 30, 32, 27, 31 and 28 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/589/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.