Otieno v Texas Alarms (K) Limited (Cause E821 of 2021) [2023] KEELRC 1323 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction where a claim is time barred under section 90 of the Employment Act
The suit was time barred and the court had no jurisdiction to entertain it; the claim was dismissed
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.
Definition and effect of a preliminary objection
The court applied the Mukisa Biscuit definition: a point of law which, if argued as a preliminary point, may dispose of the suit
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.
Conduct of counsel in preparing citations of authority
Interposing commentary within citations and altering the appearance of reported decisions is deprecated
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.
Legal principles established
#- 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
#- 1.The preliminary objection is upheld and the suit is dismissed
- 2.Costs of the suit to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.