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ELRCStruck OutNot stated in judgment

Malusi v Inter Security Services Limited (Cause 590 of 2018) [2023] KEELRC 2050 (KLR)

Employment and Labour Relations Court
31 July 2023
470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a security guard employed by the respondent, pleaded that he was arrested on 16th December 2011 on allegations of theft and charged with stealing contrary to Section 275 of the Penal Code. He was acquitted on 20th August 2015 and, on attempting to report back to work, was allegedly verbally dismissed without cause. He claimed Kshs.1,630,170/= comprising underpayment during the period worked, unpaid salary during suspension, annual leave, salary in lieu of notice and compensation for unfair termination, contending that he was never called upon to defend himself against the allegations. The respondent filed a statement of response and a preliminary objection asserting that the claimant absented himself from duty after being charged, and that the claim was statute barred under Section 90 of the Employment Act. The court held that limitation goes to jurisdiction and may be raised suo motu even in an undefended cause. On the claimant's own pleadings, more than three years elapsed between the alleged verbal dismissal in August 2015 and the filing of the claim on 23rd April 2018. Section 90 was held to be mandatory and incapable of extension. The court struck out the claim as statute barred, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim is statute barred under Section 90 of the Employment Act
  2. 2.Whether the court can decline jurisdiction on limitation on its own motion even where the cause proceeds undefended

Key legal issues

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01

Whether the claim was barred by Section 90 of the Employment Act

Holding

The claim was statute barred as it was filed more than three years after the alleged dismissal

Reasoning

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.

p. 2
02

Whether the court could raise limitation suo motu in an undefended cause

Holding

Yes; limitation goes to jurisdiction and the court may decline jurisdiction on its own motion

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The claim struck out as statute barred
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not expressly invoked; Employment Act, Section 90 (limitation) considered

Relief refused

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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

p. 2

Costs

No order as to costs

Quotable passages

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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.
p. 2Limitation and jurisdiction
This section is couched on mandatory terms and once lapses the period cannot be extended.
p. 2Mandatory nature of Section 90 Employment Act
To this extent the court find the claim statute barred and hereby strikes the same out with no order as to costs.
p. 2Final orders - striking out

Issues in the judgment

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minor

Minor typographical error in judgment: 'It this be the case' appears where 'If this be the case' is intended

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, "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.