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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2931 (KLR)

Ajienga v Nairobi Bottlers Limited (Cause E412 of 2023) [2023] KEELRC 2931 (KLR)

Employment and Labour Relations Court
14 November 2023
NMNzioki wa Makau
1,197 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 confirmed that unfair termination claims must be filed within three years of dismissal, and internal appeals do not extend that deadline.

What this practically means

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Executive summary

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The Respondent/Applicant raised a preliminary objection dated 11th July 2023 contending that the Employment and Labour Relations Court lacked jurisdiction because the Claimant's suit, filed in May 2023, was time barred under section 90 of the Employment Act, 2007, which requires employment claims to be brought within three years of the act complained of. Citing Attorney General v Andrew Maina Githinji, Rift Valley Railways v Hawkins Wagunza Musonye, Owners of Motor Vessel 'Lilian S' and Samuel K. Macharia, the Respondent argued that the cause of action arose when the termination letter took effect on 8th April 2020, that the internal appeal concluded on 2nd June 2020 did not extend the employment relationship or suspend limitation, and that the only statutory exception is continuing injury. The Claimant, relying on Rashid Dika Yussuf Ali v Director General, National Youth Service and Mukisa Biscuits, contended that his internal appeal was concluded before he filed suit, placing his claim within three years. The Court upheld the objection. It held that the Claimant ought to have filed within three years of termination, questioned why he waited until the eclipse of his rights, and found that he should have filed by July 2020 rather than May 2023. The time-barred suit was dismissed, but the Court declined costs, making no order as to costs. Judgment delivered at Nairobi on 14th November 2023 by Nzioki wa Makau, Judge.

Key legal issues

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01

Whether the suit filed on 26th May 2023, three years after termination on 8th April 2020, is time barred under section 90 of the Employment Act

Holding

Yes; the claim is time barred and the Court has no jurisdiction, so the suit is dismissed

Reasoning

The Court accepted the Applicant's position that the cause of action arises upon issuance of the termination letter and takes effect, not upon conclusion of the internal appeal. The Claimant filed suit on 26th May 2023, beyond the three-year period running from 8th April 2020. Internal appellate mechanisms do not hold limitation in abeyance.

p. 3
02

Whether the pendency of the internal appeal suspends the limitation period

Holding

No; the three-year rule encompasses time taken in internal mechanisms and admits no exceptions other than continuing injury

Reasoning

The Respondent argued, citing John Kiiru Njiiri v University of Nairobi, that appellate procedures do not hold section 90 time in abeyance, that an appeal does not extend the employment relationship, and that the only statutory exception is continuing injury within twelve months of cessation. The Court adopted this position in dismissing the claim.

p. 3

Legal principles established

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  • A claim for termination of employment must be filed within three years of the termination, and conclusion of an internal appeal does not extend the limitation period

Court orders

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  1. 1.The Preliminary Objection is upheld and the Claim, being time barred, is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Constitution of KenyaArticle 162

Cases cited (9)

  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Rashid Dika Yussuf Ali v Director General, National Youth Service - Petition No. E125 of 2022
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors Limited
    [1969] EA 696
  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (K) Limited
    [1989] KLR 1
  • Samuel K. Macharia & another v KCB & another
    Application No. 2 of 2011, [2012] eKLR
  • John Mwangi Ngugi v Orient Sacco Society Limited
    [2021] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
Jurisdiction invoked
Article 162 of the Constitution of Kenya (ELRC jurisdiction); Preliminary Objection under 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, "Ajienga v Nairobi Bottlers Limited (Cause E412 of 2023) [2023] KEELRC 2931 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2931/eng@2023-11-14

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