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ELRCStruck OutELRC Cause (Kakamega) - Claimant's Statement of Claim dated February 7, 2023 (Preliminary Objection dated April 3, 2023)· [2023] KEELRC 1744 (KLR)

Muliro v Kibabii University of Science and Technology (Employment and Labour Relations Cause E003 of 2023) [2023] KEELRC 1744 (KLR)

Employment and Labour Relations Court
13 July 2023
JKJemimah Keli
3,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an unfair termination suit filed over three years after dismissal, confirming the three-year deadline cannot be extended.

What this practically means

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Executive summary

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The Claimant, Walubengo Singoro Muliro, sued Kibabii University for unfair termination following his summary dismissal by letter dated October 8, 2018, filing his Statement of Claim on March 16, 2023. The Respondent, through the Federation of Kenya Employers, filed a Preliminary Objection dated April 3, 2023 on two grounds: that the suit was time-barred under Section 90 of the Employment Act, 2007, and that it was res judicata, the same issue having been determined in Bungoma ELRC Cause No. 61 of 2018 between the same parties, with judgment delivered December 1, 2022. The parties filed written submissions. The court framed two issues: whether the suit was time-barred, and whether it was res judicata. On limitation, the court held that Section 90 is mandatory, requires filing within three years of the cause of action (which accrued on the date of the dismissal letter), and denies the court jurisdiction to extend time in employment contract claims; extension under Sections 27 and 28 of the Limitation of Actions Act applies only to tort. No application for extension of time had been made - submissions do not amount to an application - and the suit filed on March 16, 2023 was one year five months and eight days late. On res judicata, the court found the same parties and issue had been litigated in the earlier Bungoma suit, in which the claim was dismissed for fatal defects (unexecuted verifying affidavit and witness statement), a determination amounting to a decision on the merits; the Claimant's remedy was appeal, not a fresh suit. The Preliminary Objection succeeded and the Statement of Claim was struck out, with no order as to costs and a right of appeal within 30 days.

Key legal issues

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01

Whether the suit is time barred under Section 90 of the Employment Act, 2007

Holding

Yes - the cause of action arose on October 8, 2018 upon summary dismissal and the suit filed March 16, 2023 was one year 5 months and 8 days outside the three-year limitation period; the court has no jurisdiction to extend time.

Reasoning

Section 90 is couched in mandatory terms requiring employment claims to be filed within three years. The court is denied jurisdiction to extend time in contract-of-employment claims; extension under Sections 27 and 28 of the Limitation of Actions Act applies only to tort claims. No application for extension of time was made before filing - submissions do not amount to an application. The suit was therefore 4 years 5 months and 8 days after dismissal, outside the statutory window, and the court must stop for want of jurisdiction.

p. 4
02

Whether the instant suit is res judicata

Holding

Yes - the same parties and the same issue of unfair termination were directly and substantially in issue in Bungoma ELRC Cause No. 61 of 2018, decided on December 1, 2022.

Reasoning

Section 7 of the Civil Procedure Act bars retrial of matters directly and substantially in issue in a former suit between the same parties decided by a competent court. The prior court heard the parties and dismissed the claim as fatally defective for illegalities (unexecuted verifying affidavit and witness statement), which constituted a determination on the merits; the claimant's remedy was an appeal, not a fresh suit. The suit was therefore res judicata.

p. 7

Legal principles established

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  • Under Section 90 of the Employment Act the court lacks jurisdiction to extend time for filing employment claims; extension under Sections 27 and 28 of the Limitation of Actions Act applies only to tort claims.
  • An application for extension of time must be made before a suit is filed; submissions do not amount to an application.
  • The limitation period in employment claims runs from the date of the dismissal letter.

Court orders

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  1. 1.The Preliminary Objection dated April 3, 2023 succeeds and the Claimant's Statement of Claim is struck out
  2. 2.No order as to costs
  3. 3.Right of appeal in 30 days

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions Act (Cap. 22)Sections 4(1), 27, 28
  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Articles 50(1), 25, 159(2)(d)
  • Oaths and Statutory Declarations Act

Cases cited (9)

  • G4S Security Services (K) Ltd; Kennedy Muriuki Ndwiga v Kenya Credit Traders Limited
    (2020) eKLR, Nairobi CA No 158 of 2015
  • Gerald Muli Kiilu v Barclays Bank of Kenya Ltd
    (2016) eKLR
  • Hamilton Harrison & Mathews v Keroche Breweries Limited
    [2021] eKLR
  • Fahim Yasin Twaha v Timamy Issa Abdalla & 32 others
    [2015] eKLR
  • Nathaniel Ngure v Housing Finance
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    Supreme Court Application No 16 of 2014 [2014] eKLR
  • Francis Wabururu Njau v Bernard Kagia Njuguna
    [2009] eKLR
  • Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & another
    [2018] eKLR
  • Walubengo Singoro Muliro v Kibabii University
    Bungoma ELRC Cause No. 61 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; claim under 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, "Muliro v Kibabii University of Science and Technology (Employment and Labour Relations Cause E003 of 2023) [2023] KEELRC 1744 (KLR)", Case Analysis (2023). ELRC Cause (Kakamega) - Claimant's Statement of Claim dated February 7, 2023 (Preliminary Objection dated April 3, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1744/eng@2023-07-13

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