Malusi v Inter Security Services Limited (Cause 590 of 2018) [2023] KEELRC 2050 (KLR)
The bottom line
#Kenya's Employment Court struck out a Kshs.1.6 million unfair dismissal claim filed more than three years late, confirming the three-year deadline is absolute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claim is statute barred under Section 90 of the Employment Act
- 2.Whether the court can decline jurisdiction on limitation on its own motion even where the cause proceeds undefended
Key legal issues
#Whether the claim was barred by Section 90 of the Employment Act
The claim was statute barred as it was filed more than three years after the alleged dismissal
On the claimant's own pleadings, he was arrested on 16th December 2011 and acquitted on 20th August 2015, after which he alleges he was verbally dismissed. The claim was filed on 23rd April 2018, more than three years later. Section 90 of the Employment Act is mandatory and the period cannot be extended.
Whether the court could raise limitation suo motu in an undefended cause
Yes; limitation goes to jurisdiction and the court may decline jurisdiction on its own motion
The court held that because limitation touches jurisdiction, the court cannot proceed once satisfied that a matter is barred by statute, regardless of whether it proceeded as an undefended cause. It may decline jurisdiction on its own motion where the claim is statute barred.
Legal principles established
#- Limitation goes to jurisdiction and a court may, on its own motion, decline to entertain a claim that is statute barred, even where the cause proceeds undefended
- The limitation period under Section 90 of the Employment Act is mandatory and cannot be extended once it lapses
Court orders
#- 1.The claim struck out as statute barred
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly invoked; Employment Act, Section 90 (limitation) considered
Relief refused
#Claim of Kshs.1,630,170/= for underpayment, unpaid salary during suspension, annual leave, salary in lieu of notice and compensation for unfair termination
The claim was filed more than three years after the alleged verbal dismissal and was therefore barred by Section 90 of the Employment Act
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Limitation goes to the jurisdiction of the court hence the court cannot proceed when it is satisfied that a matter is barred by statute.
This section is couched on mandatory terms and once lapses the period cannot be extended.
To this extent the court find the claim statute barred and hereby strikes the same out with no order as to costs.
Issues in the judgment
#Minor typographical error in judgment: 'It this be the case' appears where 'If this be the case' is intended
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malusi v Inter Security Services Limited (Cause 590 of 2018) [2023] KEELRC 2050 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2050/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.