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ELRCStruck OutNot stated in the judgment· [2023] KEELRC 2582 (KLR)

Ongachi v Kenya Power & Lighting Co Ltd (Cause E024 of 2023) [2023] KEELRC 2582 (KLR)

Employment and Labour Relations Court
19 October 2023
ANAgnes Kitiku Nzei
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an unfair dismissal suit filed six weeks past the three-year limit, confirming employment claims must be filed within three years.

What this practically means

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Executive summary

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The claimant sued the respondent, his former employer, seeking a declaration that his summary dismissal on 4/2/2020 was wrongful, illegal and unfair, together with reinstatement, salary arrears and general, aggravated and exemplary damages. The respondent filed a statement of response and a preliminary objection contending that the court lacked jurisdiction because the suit was filed outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007, and outside the limitation periods in sections 3(1) and (2) of the Public Authorities Limitation Act (cap 39). The court canvassed the objection on written submissions. It first held that the Public Authorities Limitation Act did not apply, since the respondent was neither the Government nor a local authority. On section 90, the court identified the summary dismissal as the act giving rise to the cause of action; three years from 4/2/2020 lapsed on 3/2/2023, and the suit, filed on 23/3/2023, was therefore statute-barred and outside the court's jurisdiction. Relying on the Court of Appeal's decision in John Njuguna Mwaura & 2 others v Republic, the court held it had to down its tools. The preliminary objection was upheld, the suit was struck out, and there was no order as to costs.

Key legal issues

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01

Whether the suit was time-barred under section 90 of the Employment Act, 2007

Holding

Yes - the cause of action arose on the summary dismissal on 4/2/2020; three years lapsed on 3/2/2023, and the suit filed on 23/3/2023 was statute-barred.

Reasoning

The court identified the summary dismissal as the act complained of and the moment the cause of action accrued. Section 90 requires suits arising from the Employment Act or a contract of service to be commenced within three years. Filing on 23/3/2023 fell outside that window, leaving the court without jurisdiction. A statute-barred suit can only be struck out unless withdrawn, and no withdrawal was indicated.

p. 3
02

Whether the Public Authorities Limitation Act (cap 39) applied to the respondent

Holding

No - the respondent is neither the Government nor a local authority, so the Act was wrongfully invoked.

Reasoning

Although described as a statutory corporation in the pleadings, the respondent was not shown to fall within the Public Authorities Limitation Act, whose preamble confines it to proceedings against the Government and local authorities. That limb of the preliminary objection therefore failed, and only section 90 of the Employment Act carried the objection.

p. 2

Legal principles established

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  • A cause of action based on summary dismissal accrues on the date of dismissal, and a suit filed more than three years later is statute-barred under section 90 of the Employment Act and must be struck out for want of jurisdiction.
  • Where a court lacks jurisdiction it must down its tools.
  • The Public Authorities Limitation Act (cap 39) applies only to the Government and local authorities, not to a private limited liability company or statutory corporation outside its definition.

Court orders

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  1. 1.The respondent's preliminary objection is upheld
  2. 2.The claimant's suit is struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Public Authorities Limitation Act (cap 39)sections 3(1) and (2)
  • Limitation of Actions Actsection 4(1)

Cases cited (1)

  • John Njuguna Mwaura & 2 others v Republic
    [2013] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation of employment actions) - invoked on a preliminary objection

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, "Ongachi v Kenya Power & Lighting Co Ltd (Cause E024 of 2023) [2023] KEELRC 2582 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2582/eng@2023-10-19

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