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ELRCDismissedNotice of motion dated November 17, 2022· [2023] KEELRC 2281 (KLR)

Ogola v Mount Kenya University (Miscellaneous Civil Application E046 of 2022) [2023] KEELRC 2281 (KLR)

Employment and Labour Relations Court
28 September 2023
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employment claims must be filed within three years—courts have no power to extend that deadline, no matter how strong the case.

What this practically means

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Executive summary

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The applicant, Prof Fredrick Ogola, moved the Employment and Labour Relations Court at Nakuru by notice of motion dated November 17, 2022 seeking leave to file a claim out of time against the respondent for unpaid teaching and lecture fees of Kshs.111,000 said to have been earned in August 2018, and for the draft suit to be deemed duly filed. The application invoked Article 41 of the Constitution, the Civil Procedure Act, section 4(1) of the Limitation of Actions Act and the ELRC Act and Rules. The respondent opposed, deposing through a senior human resource officer that a demand letter of April 27, 2021 had been served on April 29, 2021 with an intimation of legal action within 14 days, yet no suit was filed, leaving the applicant indolent and statutorily barred. The respondent submitted that section 90 of the Employment Act ousts the Limitation of Actions Act, fixes a three-year limitation for employment claims, and that the court lacks jurisdiction to enlarge time. The court framed a single issue: whether it should extend time to allow the claim out of time. Holding that section 90 displaces the Limitation of Actions Act, contains no extension mechanism, and that the applicant offered no explanation for the delay, the court found limitation not a mere technicality but a jurisdictional bar, dismissed the application as bad in law and misconceived, and awarded costs to the respondent. Judgment was delivered virtually at Nakuru on September 28, 2023.

Key legal issues

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01

Whether the court can extend time for filing an employment claim under section 90 of the Employment Act

Holding

No. Section 90 ousts the Limitation of Actions Act, requires filing within three years, and provides no power to enlarge time.

Reasoning

Section 90 expressly displaces section 4(1) of the Limitation of Actions Act for employment claims and fixes three years as the limitation period. The provision contains no saving or extension mechanism, so the court cannot judicially craft one. Even if such a discretion existed, the applicant offered no explanation for the delay beyond unfulfilled promises of settlement, and filed over a year after expiry.

p. 3
02

Whether a time-barred claim is a mere technicality

Holding

No; it goes to the court's jurisdiction to entertain the claim.

Reasoning

The court agreed with the respondent that limitation is not a technicality but touches the core of jurisdiction: once time expires the action becomes stale and cannot be entertained, whatever its merits.

p. 4

Legal principles established

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  • Section 90 of the Employment Act ousts the Limitation of Actions Act in employment matters and fixes a three-year limitation period with no provision for extension.
  • Once the statutory limitation period expires, the claim is time-barred and goes to jurisdiction regardless of merit.

Court orders

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  1. 1.The Applicant's notice of motion dated November 17, 2022 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 3, 3A, 95
  • Limitation of Actions ActSection 4(1)
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Employment ActSection 90

Cases cited (6)

  • Gatune v Nairobi Technical High School & another
    (1988) eKLR
  • Josephat Ndirangu v Henkel Chemicals E.A. Ltd
    (2013) eKLR
  • James Muriithi Ngotho V Judicial Service Commission
    (2012) eKLR
  • Nyanamba O. Steve v Teachers Service Commission
    (2016) eKLR
  • In the matter of the Interim Independent Electoral Commission
    (2011) eKLR
  • Wilson Nyabuto Areri v Postal Corporation of Kenya
    (2018) eKLR
Jurisdiction invoked
Article 41 of the Constitution; sections 3, 3A and 95 of the Civil Procedure Act; section 4(1) of the Limitation of Actions Act; section 12 of the Employment and Labour Relations Court Act; Rule 17 of the ELRC (Procedure) Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ogola v Mount Kenya University (Miscellaneous Civil Application E046 of 2022) [2023] KEELRC 2281 (KLR)", Case Analysis (2023). Notice of motion dated November 17, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2281/eng@2023-09-28

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