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ELRCDismissedNot stated in judgment· [2023] KEELRC 1726 (KLR)

Makhoha v Multiple Ice Kenya Limited (Miscellaneous Application E015 of 2023) [2023] KEELRC 1726 (KLR)

Employment and Labour Relations Court
29 June 2023
1,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused a fee waiver because the dismissed worker's claim was already past the mandatory three-year deadline, regardless of his poverty.

What this practically means

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Executive summary

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The petitioner sought leave, by application dated 10 March 2023, to file his petition for free on grounds of financial inability. He averred that his employment was unlawfully terminated after he was accused of defilement; he was arrested, detained and incarcerated, during which time he was summarily dismissed by the respondent. He was later acquitted on 15 April 2021, but when he followed up with the respondent he was denied a hearing. The respondent did not oppose the application but filed written submissions invoking Section 90 of the Employment Act, 2007, arguing that the claim had to be filed within three years of the cause of action arising. The court, on its own motion, directed the parties to address Section 90. It found that the summary dismissal letter was issued on 10 January 2019, so the cause of action arose then and the petitioner ought to have filed suit on or before 9 January 2022; time had lapsed. The court held that time under Section 90 does not stop running because of ongoing criminal proceedings, and that filing a petition rather than a Memorandum of Claim does not extend time. While Article 48 access to justice is sacred and protects indigent litigants, the filing of suit must be within the confines of the law; granting leave to file a time-barred petition would urge the petitioner on without good cause and waste judicial time. The application was accordingly declined, with each party bearing own costs despite the respondent's non-opposition.

Key legal issues

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01

Limitation under Section 90 of the Employment Act, 2007

Holding

The cause of action arose on 10 January 2019 upon summary dismissal; time to sue expired on or before 9 January 2022 and the claim is extinguished and time-barred

Reasoning

Section 90 of the Employment Act, 2007 requires employment and labour relations claims to be filed within 3 years from when the cause of action arose. The petitioner was summarily dismissed on 10 January 2019, so the claim should have been filed by 9 January 2022. Time does not stop running because of ongoing criminal proceedings, and framing the claim as a petition rather than a Memorandum of Claim does not extend time. The court relied on Elias Kibathi and Francis Atonya Ayeka.

p. 2
02

Access to justice under Article 48 versus limitation law

Holding

Access to justice is sacred but filing suit for free must remain within the confines of the law; leave to file a time-barred petition would serve no purpose

Reasoning

Article 48 guarantees access to justice, and the court protects litigants who are unable to file suit due to indigence. However, the leave sought must be allowed in context: permitting an indigent litigant to file a petition that is technically not allowable would urge him on without good cause and waste judicial time. The petition, not yet filed, would be time-barred on its face.

p. 2
03

Effect of criminal proceedings and form of claim on limitation

Holding

Neither pending criminal proceedings nor use of a petition instead of a Memorandum of Claim extends the Section 90 period

Reasoning

Relying on Francis Atonya Ayeka, time in employment claims cannot be extended by criminal proceedings or any other device of the parties. The Court of Appeal in Regent Management Limited v Wilberforce Ojiambo Oundo confirms that criminal proceedings do not bar civil proceedings on similar facts and a dismissed employee need not await their outcome. Filing a petition rather than a Memorandum of Claim is likewise insufficient to extend time.

p. 2

Legal principles established

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  • A cause of action arising out of an employment relationship must be filed within 3 years from the date the cause of action arose, and Section 90 of the Employment Act, 2007 is mandatory
  • Time under Section 90 does not stop running on account of ongoing criminal proceedings
  • Access to justice under Article 48 is protected, but a litigant's suit must still be filed within the confines of the law
  • Institution of criminal proceedings is not a bar to civil proceedings on similar facts, and a dismissed employee need not await the outcome of criminal proceedings before challenging a dismissal

Court orders

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  1. 1.Application dated 10 March 2023 seeking leave to file the petition for free is declined
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Constitution of Kenya, 2010Article 48

Cases cited (8)

  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • James Mugeria Igati v Public Service Commission
    [2014] eKLR
  • Peter Ndegwa Nderitu v Teachers Service Commission
    [2019] eKLR
  • Elias Kibathi & another v Attorney General
    [2021] eKLR
  • Francis Atonya Ayeka v Kenya Police Service & another
    [2017] eKLR
  • Regent Management Limited v Wilberforce Ojiambo Oundo
    [2018] eKLR
  • Geoffrey Kiragu Njogu vs. Public Service Commission & 2 others
    [2015] eKLR
  • Attorney General & another vs. Andrew Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes, with Section 90 of the Employment Act, 2007 and Article 48 of the Constitution engaged

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Makhoha v Multiple Ice Kenya Limited (Miscellaneous Application E015 of 2023) [2023] KEELRC 1726 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1726/eng@2023-06-29

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