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ELRCDismissedNot stated in judgment· [2023] KEELRC 1928 (KLR)

Yaa & another (Suing as Administrators of the Estate of Fredrick Yaa Charo) v Kilifi County Government & another (Cause 76 of 2017) [2023] KEELRC 1928 (KLR)

Employment and Labour Relations Court
13 July 2023
MMM. MBARŨ
781 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The respondents filed notices of preliminary objection on 5 December 2022 arguing that the claim against the 2nd respondent was time barred under section 90 of the Employment Act, 2007, since the deceased's employment ended in 2015 and the Further Amended Memorandum of Claim joining the 2nd respondent was filed years later, outside the three-year limitation period; the suit was therefore incompetent and the claimants lacked capacity. The 2nd respondent relied on Kenya Wine Agencies v Yobeth Amoro and Nyanamba O Steve v Teachers Service Commission, submitting that limitation is not a technicality curable by amendment. The claimants countered that the original suit was filed on 29 November 2017 within time, that the court had on 14 March 2022 allowed amendment, and that under section 20 of the Employment and Labour Relations Court Act, 2011 the court had power to issue directions in the interests of justice. The court, M. Mbarũ J, framed a sole issue: whether the claim against the 2nd respondent was filed contrary to section 90 and time barred. It held that the claim was originally filed within time and that the joinder of the 2nd respondent was effected pursuant to the court's own order of 21 June 2022 directing amendment to bring on board the relevant County Public Service Board as a necessary party; those directions, anchored in section 20(4) of the ELRC Act, could not be circumvented. The preliminary objections were dismissed, hearing directions were ordered, and costs were awarded to the claimants.

Key legal issues

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01

Whether the claim against the 2nd respondent, introduced by amendment more than 3 years after termination of employment, is time barred under section 90 of the Employment Act

Holding

The objection fails; the claim was filed within time and the joinder of the 2nd respondent was effected pursuant to the court's own directions under section 20 of the ELRC Act, so limitation is not defeated by the amendment.

Reasoning

The court noted that the original claim was filed in 2017, within the statutory period. The introduction of the 2nd respondent came through a court order of 21 June 2022 directing amendment to bring on board the relevant County Public Service Board as a necessary party. Such directions, issued under the court's wide mandate under the constitutive legislation, cannot be circumvented, and the respondents' preliminary objection attempting to do so is without merit.

p. 2

Legal principles established

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  • Where a court of competent jurisdiction orders joinder of a party through amendment, that joinder relates back and the claim is not defeated by limitation; such directions cannot be circumvented.

Court orders

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  1. 1.Preliminary objections dated 5 December 2022 are dismissed as without merit
  2. 2.Hearing directions on the claim shall issue
  3. 3.Costs to the claimants

Authorities

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Legislation

  • Employment Actsection 90
  • Employment and Labour Relations Court Actsection 20(1)
  • Employment and Labour Relations Court Actsection 20(4)

Cases cited (2)

  • Kenya Wine Agencies v Yobeth Amoro
    [2018] eKLR
  • Nyanamba O Steve v Teachers Service Commission
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 20

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, "Yaa & another (Suing as Administrators of the Estate of Fredrick Yaa Charo) v Kilifi County Government & another (Cause 76 of 2017) [2023] KEELRC 1928 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1928/eng@2023-07-13

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