Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedApplication dated November 7, 2022· [2023] KEELRC 2151 (KLR)

Ng’ondu v Abyssinia Group of Industries (Miscellaneous Cause E189 of 2022) [2023] KEELRC 2151 (KLR)

Employment and Labour Relations Court
21 September 2023
MOMaureen Onyango
1,203 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
By an application dated November 7, 2022, the applicant sought leave to file suit against the respondent, Abyssinia Group of Industries, after the expiry of the limitation period. He alleged he was employed from October 15, 2014 as Import and Export Manager on a two-year contract renewed in 2016, with employment amicably severed in 2018, and that the respondent withheld his accrued leave dues for 2017 and 2018. He blamed numerous evasions by the respondent, financial hardship and the Covid-19 pandemic for the delay in filing suit. The respondent filed neither a response nor submissions. The court framed a single issue: whether the applicant was entitled to an extension of time to file suit. Relying on section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act, the court held that claims arising out of employment must be commenced within three years. The Limitation of Actions Act permits extension only in cases of disability, acknowledgement, part payment, fraud or mistake, none of which the applicant pleaded. Following Divecon v Samani and Maria Machocho v Total (K) Ltd, the court held it had no jurisdiction to extend the limitation period for contract and employment claims. The application was dismissed, with no orders for costs because the respondent had not filed a response. The judgment was delivered virtually at Eldoret on September 21, 2023 by Maureen Onyango, Judge.

Key legal issues

#
01

Whether the court has jurisdiction to grant leave to file suit out of time in an employment claim

Holding

The court has no jurisdiction to extend the limitation period for employment claims; extension under the Limitation of Actions Act applies only in cases of disability, acknowledgement, part payment, fraud or mistake, none of which were pleaded

Reasoning

Section 90 of the Employment Act read with section 4(1) of the Limitation of Actions Act sets a three-year limitation period for employment claims. The Limitation of Actions Act allows extension only for disability, acknowledgement, part payment, fraud or mistake, none pleaded here. Following Divecon v Samani and Maria Machocho v Total (K) Ltd, no court may entertain an action founded on contract filed out of time or extend time for it.

p. 3

Legal principles established

#
  • Courts have no jurisdiction to extend the limitation period for actions founded on contract or arising out of the Employment Act
  • Claims arising out of employment or a contract of service must be commenced within three years

Court orders

#
  1. 1.The application dated November 7, 2022 seeking leave to file suit out of time is dismissed
  2. 2.No orders for costs since the Respondent did not file any response to the application

Authorities

#

Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)

Cases cited (3)

  • Divecon v Samani
    Civil Appeal No. 142 of 1997
  • Maria Machocho –v- Total (K) Ltd
    Cause No. 2 of 2012
  • Beatrice Kahai Adagala -v- Postal Corporation of Kenya
    [2015] eKLR
Jurisdiction invoked
Section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act (Cap. 22)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ng’ondu v Abyssinia Group of Industries (Miscellaneous Cause E189 of 2022) [2023] KEELRC 2151 (KLR)", Case Analysis (2023). Application dated November 7, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2151/eng@2023-09-21

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