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ELRCDismissedNot stated in the judgment provided· [2023] KEELRC 2871 (KLR)

Aduord & 2 others v Judicial Service Commission (Cause E262 of 2015) [2023] KEELRC 2871 (KLR)

Employment and Labour Relations Court
10 November 2023
MOM. Onyango
1,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a decades-old arrears claim because it was filed more than three years late under Section 90 of the Employment Act.

What this practically means

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court at Eldoret, delivered by M. Onyango, Judge, on 10th November 2023, determined a notice of preliminary objection dated 17th June 2022 raised by the Respondent. The Respondent argued that the Claimants' suit was time barred under Section 90 of the Employment Act, 2007 and was incompetent and ought to be struck out with costs. The 1st Claimant, Sebastian Ben Aduord, responded by affidavit, stating that after reinstatement he wrote several letters without reply. The court canvassed the objection by written submissions. The court found that the Claimants, employees of the Respondent, had been dismissed and later reinstated by letters dated 3rd January 2012 (1st Claimant) and 13th December 2011 (2nd Claimant); the 3rd Claimant's reinstatement letter was not on record. The reinstatement letters treated the intervening period as unpaid leave, so the cause of action for arrears from 1995 to 2012 accrued on reinstatement. Section 90 mandates that employment claims be filed within three years; the suit was filed long after that period expired. Relying on Divecon v Samani, Maria Machocho, Beatrice Kahai Adagala, Wilson Nyabuto Areri and Owners of the Motor Vessel 'Lillian S', the court held that the limitation period cannot be extended in contract-based employment claims and that limitation is substantive law affecting jurisdiction. Lacking jurisdiction, the court dismissed the claim and made no orders as to costs.

Key legal issues

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01

Whether the claim is time barred under Section 90 of the Employment Act, 2007

Holding

The claim is time barred. The cause of action arose upon reinstatement (3rd January 2012 for the 1st Claimant and 13th December 2011 for the 2nd Claimant) and the suit, filed more than three years later, offends Section 90.

Reasoning

The court held that the cause of action, being for arrears from 1995 to 2012, accrued when the reinstatement letters were issued. Section 90 of the Employment Act is framed in mandatory terms and requires such claims to be commenced within three years. The claimants did not file within that period, so the suit is statute-barred.

p. 2
02

Whether the court has jurisdiction to hear a claim filed out of time under Section 90

Holding

The court has no jurisdiction; the limitation period under Section 90 cannot be extended in contractual employment claims.

Reasoning

Relying on Divecon v Samani, Maria Machocho and Beatrice Kahai Adagala, the court held that Section 90 is in mandatory terms and the limitation period is never extended in matters based on contract; extension is only possible in tort claims under Sections 27 and 28 of the Limitation of Actions Act. Lacking jurisdiction, the court must down its tools.

p. 3

Legal principles established

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  • Limitation under Section 90 of the Employment Act is substantive law affecting jurisdiction, and a claim filed outside the three-year period robs the court of jurisdiction.

Court orders

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  1. 1.The notice of preliminary objection dated 17th June 2022 is upheld
  2. 2.The claim is dismissed for being time barred
  3. 3.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSections 27 and 28

Cases cited (6)

  • Wilson Nyabuto Areri v Postal Corporation of Kenya
    [2018] eKLR
  • Divecon v Samani
    [1995-1998] 1 EA 48
  • Maria Machocho v Total (K)
    Industrial Cause No. 2 of 2012
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Limited
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; limitation governed by Section 90 of the Employment Act, 2007

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, "Aduord & 2 others v Judicial Service Commission (Cause E262 of 2015) [2023] KEELRC 2871 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2871/eng@2023-11-10

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