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ELRCAllowedMemorandum of Appeal dated March 29, 2023 (from Milimani Chief Magistrates Court Nairobi CMEL No. 412 of 2018)· [2024] KEELRC 265 (KLR)

Njunge v Muasya (Appeal E040 of 2023) [2024] KEELRC 265 (KLR)

Employment and Labour Relations Court (High Court of Kenya)
9 February 2024
AJAbuodha Nelson Jorum
2,779 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 ruled that employment contract claims must be filed within three years, and courts cannot extend that deadline, so the case was dismissed.

What this practically means

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court against the judgment of S.A Opande (PM) delivered on March 20, 2023 in Milimani CMEL No. 412 of 2018, in which the respondent had succeeded in claims against the appellant including unfair termination compensation, leave, service pay and underpayments. The appellant, represented by counsel, filed nineteen grounds of appeal contending, principally, that the claim was time-barred under section 90 of the Employment Act, that the ex parte order extending time issued by Hon. Khaemba at Kiambu Chief Magistrates Court was erroneous and never properly interrogated at trial, that the trial magistrate shifted the burden of proof, and that the respondent was engaged by Sheqel Investments Ltd, a separate legal entity. The appellant sought that the judgment be set aside with costs. The respondent, acting in person, defended the judgment on the basis that leave to file out of time had been granted, that her evidence of nine years of service, underpayment, non-registration with NSSF and denial of leave was uncontroverted, and that the appellant produced no employment records to rebut her claim. The appeal was disposed of by written submissions. The Court held that an allegation of limitation goes to jurisdiction; that section 90 of the Employment Act is mandatory and admits no extension for claims founded on contract; and that the trial magistrate erred in proceeding to hear a claim barred by limitation. Allowing the appeal on that ground alone, the Court substituted the judgment in favour of the respondent with an order dismissing the suit in the court below.

Key legal issues

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01

Jurisdiction where a suit is filed outside the limitation period under section 90 of the Employment Act

Holding

The trial magistrate committed an error of jurisdiction by hearing a claim barred by section 90 of the Employment Act; the ex parte extension of time could not validly confer jurisdiction in a claim founded on contract.

Reasoning

Section 90 is couched in mandatory terms ('no action shall lie') once the three-year period lapses. An action arising from a contract of employment is an action based on contract, and under the Limitation of Actions Act no extension was permissible for contract claims once the limitation period lapsed; extensions exist only in tort claims under sections 27 and 28. The Court of Appeal in Beatrice Kahai Adagala confirms this. Since the suit was admittedly filed beyond the period, the court lacked jurisdiction and should have downed its tools.

p. 6
02

Procedural propriety of hearing limitation in limine

Holding

The trial court ought to have heard the limitation issue in limine before proceeding with the merits of the suit.

Reasoning

Because limitation goes to jurisdiction, the trial court was required to determine the objection at the outset rather than proceed to a full hearing and judgment on the merits.

p. 6

Legal principles established

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  • A claim based on a contract of employment must be filed within three years under section 90 of the Employment Act, and the limitation period for claims founded on contract cannot be extended.
  • An allegation that a claim is statute barred goes to the jurisdiction of the Court, and if found to be true the Court cannot proceed further.

Court orders

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  1. 1.The Appeal is allowed
  2. 2.The finding of the lower court entering judgment in favour of the respondent is substituted with an order dismissing the suit in the Court below
On appeal from
Milimani Chief Magistrates Court Nairobi
CMEL No. 412 of 2018
Jurisdiction invoked
Appellate jurisdiction over the first-instance employment claim (appeal from the Chief Magistrate's Court in a claim arising under the Employment Act, section 90 limitation issue)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njunge v Muasya (Appeal E040 of 2023) [2024] KEELRC 265 (KLR)", Case Analysis (2024). Memorandum of Appeal dated March 29, 2023 (from Milimani Chief Magistrates Court Nairobi CMEL No. 412 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/265/eng@2024-02-09

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