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ELRCStruck OutELRC Nairobi Cause No. E 032 OF 2022· [2023] KEELRC 1844 (KLR)

Kimonge v Standard Chartered Bank Kenya Ltd (Cause E032 of 2022) [2023] KEELRC 1844 (KLR)

Employment and Labour Relations Court
27 July 2023
1,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a redundancy claim filed just two days late, confirming the strict three-year deadline in the Employment Act.

What this practically means

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Executive summary

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The Claimant sued the Respondent challenging the termination of his employment on grounds of redundancy, effective January 20, 2019, and sought compensation including alleged constitutional reliefs. The suit was filed on January 21, 2022. The Respondent raised a preliminary objection that the suit was time barred under section 90 of the Employment Act, which requires such actions to be brought within three years. The court, applying the Mukisa Biscuit test, held that the objection was a pure point of law and that the cause of action accrued on January 20, 2019 as disclosed by the pleadings; the Claimant's post-termination clearance process did not extend the contract. The court rejected the Claimant's reliance on Order 50 rule 4 of the Civil Procedure Rules (the December vacation), following the Court of Appeal's decision in Maersk Kenya Limited v Murabu Chaka Tsuma, holding that the rule cannot defeat the express limitation in section 90. The court also held that the alleged constitutional claims were not pleaded with the precision required by Anarita Karimi Njeru, and that under the constitutional avoidance doctrine the grievances, including alleged ethnic discrimination, could be litigated under section 5 of the Employment Act. The suit, filed two days out of time, was struck out with costs to the Respondent.

Key legal issues

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01

Accrual of the cause of action

Holding

The cause of action accrued on January 20, 2019, the date of termination on redundancy, not January 28, 2019 when clearance was completed

Reasoning

Both the Memorandum of Claim and the defence placed termination on January 20, 2019, so the pleadings fixed accrual. Post-termination attendance at the workplace was only to process clearance and did not extend the contract, which the Claimant knew would end on January 20, 2019.

p. 2
02

Application of the December vacation rule

Holding

Order 50 rule 4 of the Civil Procedure Rules does not extend the limitation period under section 90 of the Employment Act

Reasoning

The exemption applies only to acts under the Civil Procedure Rules or a court order. The Court of Appeal in Maersk Kenya Limited v Murabu Chaka Tsuma held that the rule cannot defeat limitation provisions under the Limitation of Actions Act.

p. 3
03

Whether the constitutional claim defeats limitation

Holding

No; the memorandum lacked particulars of the constitutional provisions violated and the grievances could be litigated under the Employment Act

Reasoning

Following Anarita Karimi Njeru, constitutional claims must be pleaded with precision. Further, by the constitutional avoidance doctrine, matters resolvable under subordinate legislation, such as discrimination under section 5 of the Employment Act, should not be constitutionalised to escape limitation.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law capable of disposing of the case, uncontested on facts
  • In computing limitation, the court examines only the pleadings to discern when the cause of action accrued
  • Order 50 rule 4 December vacation cannot be invoked to defeat the express limitation period under section 90 of the Employment Act
  • A party cannot disguise an ordinary claim as a constitutional claim to defeat limitation

Court orders

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  1. 1.The suit is struck out with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 5
  • Civil Procedure RulesOrder 50 rule 4
  • Limitation of Actions Act
  • ELRC Procedure RulesRule 28 (3)
  • Constitution of Kenya 2010Bill of Rights

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd
    [1969)EA
  • Maersk Kenya Limited v Murabu Chaka Tsuma
    [2017] eKLR
  • Murabu Chaka Tsuma v Maersk Kenya Limited
    [2015] eKLR
  • Daniel Kibet Mutai & 9 others v Attorney General
    [2019] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • KKB v SCM & 5 others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)
  • Reuben Ngila Kitonyi v Central Bank of Kenya
    [2019] eKLR
  • Morris Kyengo Makovu v Kenya Power & Lighting Company Ltd & 3 others
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; limitation governed by section 90 of the Employment Act

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, "Kimonge v Standard Chartered Bank Kenya Ltd (Cause E032 of 2022) [2023] KEELRC 1844 (KLR)", Case Analysis (2023). ELRC Nairobi Cause No. E 032 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1844/eng@2023-07-27

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