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ELRCStruck OutNot stated in the judgment as provided· [2023] KEELRC 2526 (KLR)

Makokha v Judicial Service Commission (Employment and Labour Relations Cause E579 of 2022) [2023] KEELRC 2526 (KLR)

Employment and Labour Relations Court
19 October 2023
2,630 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant alleged that he entered a consultancy contract with the International Development Law Organization in July 2012 to provide services to the Judiciary and the Office of the Chief Justice, and that after the contract lapsed he continued serving until resigning on 17th April 2015 when the Respondent (the Judicial Service Commission) failed to formalize an employment relationship. He claimed salary arrears for 19 months and other pecuniary losses. The Respondent denied any employment relationship, contending the Claimant was an independent contractor under the IDLO consultancy, and filed a preliminary objection arguing the suit, filed in August 2022, was time barred under section 90 of the Employment Act. The court held that a plea of limitation is a proper preliminary objection where the primary facts - the 2012 engagement and the April 2015 resignation - were uncontested, even though the nature of the relationship was disputed. The cause of action accrued on 17th April 2015, so suit ought to have been filed by 17th April 2018; filing on 16th August 2022 was over seven years late. The court rejected the Claimant's arguments that a constitutional rights framing exempted the claim from limitation, finding no express constitutional claim or relief pleaded and that the issues could be resolved under ordinary employment legislation. It also rejected the estoppel argument, holding that settlement negotiations do not stop limitation time from running. The suit was struck out with costs to the Respondent.

Key legal issues

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01

Whether a plea of limitation is a proper preliminary objection despite contested facts

Holding

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

Reasoning

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.

p. 3
02

Whether the suit was statute barred under section 90 of the Employment Act

Holding

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

Reasoning

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.

p. 4
03

Whether the constitutional framing of the claim exempted it from limitation

Holding

No - the claim raised no genuine constitutional question; it would stand or fall on ordinary employment law

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Claimant's suit is struck out with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • KKB v SCM & 5 others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)
  • Thuita Mwangi v Attorney General & 2 others
    [2021] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment law; claim founded on alleged employment relation

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, "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.