Awino v Insight Management Consultants Ltd (Cause E288 of 2022) [2023] KEELRC 1640 (KLR)
The bottom line
#A Kenyan court struck out an employment claim filed years late, confirming the three-year deadline in employment cases is strict and cannot be extended.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection meets the Mukisa Biscuits threshold
It does, because it is founded on limitation, a pure point of law.
The court applied the classic test that a preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, citing jurisdiction, limitation or arbitration as examples. Since the objection was based on limitation, it qualified.
Whether the suit is statute barred under section 90 of the Employment Act
Yes. Employment was terminated on July 31, 2017 and the suit was filed close to five years later, far beyond the three-year limitation period.
Section 90 requires actions based on the Employment Act or a contract of service to be commenced within three years. The alleged engagement in alternative dispute resolution was unsupported by evidence; the union letters predated the termination and concerned a different dispute (CBA implementation and outsourcing), and there was no Conciliator's Certificate under section 62 of the Labour Relations Act.
Whether the court has jurisdiction
No. Limitation being jurisdictional, the court lacks jurisdiction over a time-barred suit.
Because limitation goes to jurisdiction, the court held it could not hear and determine the suit, notwithstanding the claimant's arguments based on exhaustion of remedies and article 159 of the Constitution.
Whether the Limitation of Actions Act's six-year contractual window applies to the claim
No. Section 90 of the Employment Act governs employment contracts, and the six-year argument was rejected.
The claimant argued a six-year limitation window under the Limitation of Actions Act because the claim was contractual. The court held that this overstretch the imagination, since section 90 of the Employment Act expressly notwithstanding section 4(1) of the Limitation of Actions Act governs suits based on contracts of service.
Legal principles established
#- Section 90 of the Employment Act admits no extension of time or postponement of the running of limitation by the court, even where the claimant alleges alternative dispute resolution or conciliation.
- Limitation of time is essentially a jurisdictional issue.
Court orders
#- 1.The preliminary objection dated January 5, 2023 is upheld
- 2.The claimant's suit is struck out for being statute barred
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awino v Insight Management Consultants Ltd (Cause E288 of 2022) [2023] KEELRC 1640 (KLR)", Case Analysis (2023). Cause No E288 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1640/eng@2023-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.