Makhoha v Multiple Ice Kenya Limited (Miscellaneous Application E015 of 2023) [2023] KEELRC 1726 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation under Section 90 of the Employment Act, 2007
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
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.
Access to justice under Article 48 versus limitation law
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
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.
Effect of criminal proceedings and form of claim on limitation
Neither pending criminal proceedings nor use of a petition instead of a Memorandum of Claim extends the Section 90 period
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.
Legal principles established
#- 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
#- 1.Application dated 10 March 2023 seeking leave to file the petition for free is declined
- 2.Each party to bear own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rasesh Shah v Anil D. Shah t/a Amratlal Hardware Stores[2026] KEELRC 2546 (KLR)24 Sept 2026applied
Cite this brief
#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.