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ELRCStruck OutNot stated in judgment· [2023] KEELRC 1843 (KLR)

Njuguna v Unilever Kenya Limited (Miscellaneous Application E171 of 2022) [2023] KEELRC 1843 (KLR)

Employment and Labour Relations Court
31 July 2023
BMB. O. M. Manani
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out a worker's bid to enforce a Ksh 6.4 million injury award because it was filed after the three-year legal deadline, which cannot be extended.

What this practically means

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Executive summary

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The Applicant sought enforcement of an award of Ksh 6,464,870.40 made on April 2, 2019 by the Director of Occupational Health and Safety under the Work Injury Benefits Act, 2007, as compensation for injuries allegedly suffered on June 28, 2009 while working for the Respondent. The Respondent refused to pay, denying that any accident occurred or was reported, and the Director, by letter of August 1, 2022, advised the Applicant to pursue enforcement through other legal avenues, prompting this application filed on October 14, 2022. The parties canvassed the matter by written submissions. The Applicant relied on section 4(1)(c) of the Limitation of Actions Act, contending that actions to enforce an award may be brought within six years, and argued that the court could not examine the merits of the Director's award at the adoption stage. The Respondent countered that section 90 of the Employment Act, which requires employment-related actions to be brought within three years and excludes section 4(1) of the Limitation of Actions Act, applied, rendering the application time barred; it further submitted that limitation goes to jurisdiction and that the court cannot extend time. The court, per B. O. M. Manani, Judge, held that section 90 excludes the Limitation of Actions Act for employment disputes, that the application filed three years and five months after the award was out of time, that the court has no power to enlarge the section 90 period, and that examining jurisdiction is distinct from examining the merits of the award. The application was struck out with costs to the Respondent.

Key legal issues

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01

Applicable limitation regime for enforcing a Director's award under WIBA arising from an employment relation

Holding

Section 90 of the Employment Act, not section 4(1)(c) of the Limitation of Actions Act, governs; the application filed three years and five months after the award was time barred

Reasoning

Section 90 of the Employment Act expressly states that notwithstanding section 4(1) of the Limitation of Actions Act, no civil action arising out of the Act or a contract of service shall be instituted unless commenced within three years. The court held this excludes the Limitation of Actions Act for employment disputes, so the six-year period for enforcing awards did not apply.

p. 3
02

Whether the court may examine jurisdiction without examining the merits of the Director's award

Holding

Yes; asking whether the court has jurisdiction to adopt the award out of time is distinct from examining the merits of the award

Reasoning

The Applicant argued the court could not evaluate the merits of the award at the adoption stage. The court accepted that principle but held that jurisdiction over timeliness is a separate question from the merits, and limitation defeats jurisdiction at the threshold.

p. 4

Legal principles established

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  • Limitation of actions goes to the jurisdiction of the court; a filed-out-of-time action cannot be entertained
  • Section 90 of the Employment Act excludes the application of section 4(1) of the Limitation of Actions Act to employment disputes
  • The court has no power to enlarge the limitation period in section 90 of the Employment Act

Court orders

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  1. 1.The application for enforcement of the Director's award was struck out with costs to the Respondent

Authorities

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Legislation

  • Work Injury Benefits Actsection 52
  • Limitation of Actions Actsection 4(1)(c)
  • Employment Actsection 90
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Richard Akama Nyambane v ICG Maltauro Spa
    [2020] eKLR
  • Samson Wanyoike Kimani v Bliss Flora Limited
    [2018] eKLR
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Work Injury Benefits 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, "Njuguna v Unilever Kenya Limited (Miscellaneous Application E171 of 2022) [2023] KEELRC 1843 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1843/eng@2023-07-31

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