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ELRCDismissedNot stated in judgment· [2023] KEELRC 1323 (KLR)

Otieno v Texas Alarms (K) Limited (Cause E821 of 2021) [2023] KEELRC 1323 (KLR)

Employment and Labour Relations Court
22 May 2023
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a wrongful termination suit because it was filed four years after dismissal, past the three-year legal deadline.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection to the Claimant's Memorandum of Claim dated September 30, 2021, contending that the claim for unlawful termination said to have occurred on or about January 13, 2017, together with terminal benefits, was time barred under section 90 of the Employment Act 2007 and that the Claimant had not sought leave to file out of time. The Claimant filed no submissions in opposition, but the court considered the objection on the merits as it was bound to do. The court reviewed the Respondent's authorities on the definition of a preliminary objection, the jurisdiction-stripping effect of limitation, and the computation of continuing injury under section 90. Taking February 13, 2017 as the date of accrual, the three-year limitation period expired on February 13, 2020; the suit filed on October 1, 2021 was therefore out of time and in contravention of statute, and was a nullity ab initio fit only for dismissal. The court also deprecated, obiter, the manner in which the Respondent's submissions interposed commentary within citations and presented cases printed in an alien font without proper numbering, directing counsel to use the PDF downloads from the Kenya Law portal. The suit was dismissed with costs to the Respondent. The court did not disturb any prior decision; this was a first-instance interlocutory determination on jurisdiction.

Key legal issues

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01

Jurisdiction where a claim is time barred under section 90 of the Employment Act

Holding

The suit was time barred and the court had no jurisdiction to entertain it; the claim was dismissed

Reasoning

The cause of action accrued on February 13, 2017 upon termination. Section 90 requires employment claims to be filed within three years, expiring February 13, 2020. The suit filed October 1, 2021 was outside the period, in contravention of statute, and a nullity ab initio. Limitation is substantive and affects jurisdiction, so the court must down its tools. The suit was dismissed with costs.

p. 3
02

Definition and effect of a preliminary objection

Holding

The court applied the Mukisa Biscuit definition: a point of law which, if argued as a preliminary point, may dispose of the suit

Reasoning

The Respondent's objection was a pure point of law on limitation going to jurisdiction. The court adopted the classic Mukisa Biscuit formulation and, treating limitation as substantive law affecting jurisdiction, allowed the objection and dismissed the suit.

p. 2
03

Conduct of counsel in preparing citations of authority

Holding

Interposing commentary within citations and altering the appearance of reported decisions is deprecated

Reasoning

The court noted, obiter, that the Respondent's submissions were inelegantly drawn, with comments interposed within citations and cases printed in an alien font without proper numbering or citation headers, suggesting alteration. Counsel should download the PDF from the Kenya Law portal and save commentary for the paragraph following a citation.

p. 3

Legal principles established

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  • A claim founded on a contract of employment must be brought within three years of accrual under section 90 of the Employment Act; a claim filed outside that period is a nullity fit for dismissal
  • A court before whom a preliminary objection is taken must consider and determine it even if unopposed
  • Citations of authority in submissions must not be interlaced with commentary, as this amounts to altering a decision of the court

Court orders

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  1. 1.The preliminary objection is upheld and the suit is dismissed
  2. 2.Costs of the suit to the Respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap 22)section 4(1)
  • Limitation of Actions Actsections 27 and 28
  • Civil Procedure RulesOrder 7 Rule 6

Cases cited (10)

  • Mukisa Biscuit Manufacturing Company Limited v Westend Distributors Ltd
    [1969] EA 696
  • Wilson Nyabuto Areri v Postal Corporation of Kenya
    [2018] eKLR
  • James Muriithi Ngotho v Judicial Service Commission
    [2012] eKLR
  • Nyanamba O. Steve v Teachers Service Commission
    [2016] eKLR
  • Owners of Motor Vessel Lillian 'S' v Caltex Oil (K) Ltd
    [1989] KLR 1
  • Gathoni v Kenya Co-Operative Creameries Ltd
    [1982] KLR 104
  • Iga v Makerere University
    [1972] EA
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Johnson Kazungu v Kenya Marine & Fisheries Research Institute
    [2021] eKLR
  • John Kiiru Njiiri v University Of Nairobi
    [2021] eKLR
Jurisdiction invoked
Article 162(2) jurisdiction of the Employment and Labour Relations Court (inferred); objection grounded on 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, "Otieno v Texas Alarms (K) Limited (Cause E821 of 2021) [2023] KEELRC 1323 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1323/eng@2023-05-22

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