Makokha v Judicial Service Commission (Employment and Labour Relations Cause E579 of 2022) [2023] KEELRC 2526 (KLR)
The bottom line
#Kenya's Employment Court struck out a seven-year-late salary claim, confirming the three-year Employment Act deadline applies even during settlement talks.
What this practically means
#Executive summary
#Key legal issues
#Whether a plea of limitation is a proper preliminary objection despite contested facts
Yes - the primary facts informing the objection (existence of a labour relation from 2012 and departure in April 2015) were uncontested, so the objection was properly taken
The court distinguished between the entire spectrum of facts and the primary facts underlying the objection. While the nature of the relationship (employment vs independent contractor) was contested, the uncontested facts - the 2012 engagement and the April 2015 resignation - were sufficient foundation for the limitation objection.
Whether the suit was statute barred under section 90 of the Employment Act
Yes - the cause of action accrued on 17th April 2015; suit filed on 16th August 2022 was over seven years late, exceeding the three-year limitation period
Section 90 of the Employment Act requires suits based on employment relations to be filed within three years of the accrual of the cause of action. The Claimant pleaded resignation on 17th April 2015 and thus ought to have filed by 17th April 2018. Filing in August 2022 was well outside the statutory period.
Whether the constitutional framing of the claim exempted it from limitation
No - the claim raised no genuine constitutional question; it would stand or fall on ordinary employment law
Apart from a passing allegation that non-payment amounted to servitude, there was no express constitutional claim or relief sought. Applying Mativo J's test in KKB v SCM, the issues could be resolved by applying the statutory employment framework without resort to the Constitution. Parties cannot frame ordinary disputes as constitutional claims to evade limitation.
Legal principles established
#- A preliminary objection on limitation is properly raised where the primary facts informing the objection are uncontested, even if other facts are disputed
- Ordinary disputes cannot be framed as constitutional claims to circumvent the law on limitation of actions
- Out-of-court negotiations do not suspend the running of limitation time under section 90 of the Employment Act
Court orders
#- 1.The Claimant's suit is struck out with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under employment law; claim founded on alleged employment relation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makokha v Judicial Service Commission (Employment and Labour Relations Cause E579 of 2022) [2023] KEELRC 2526 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2526/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.