Kimonge v Standard Chartered Bank Kenya Ltd (Cause E032 of 2022) [2023] KEELRC 1844 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Accrual of the cause of action
The cause of action accrued on January 20, 2019, the date of termination on redundancy, not January 28, 2019 when clearance was completed
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.
Application of the December vacation rule
Order 50 rule 4 of the Civil Procedure Rules does not extend the limitation period under section 90 of the Employment Act
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.
Whether the constitutional claim defeats limitation
No; the memorandum lacked particulars of the constitutional provisions violated and the grievances could be litigated under the Employment Act
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.
Legal principles established
#- 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
#- 1.The suit is struck out with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; limitation governed by section 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.