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ELRCDismissedNotice of Motion dated 15th December, 2023 (ELRC)· [2024] KEELRC 423 (KLR)

Shetty v Lean Energy Solutions Ltd (Miscellaneous Application E293 of 2023) [2024] KEELRC 423 (KLR)

Employment and Labour Relations Court
29 February 2024
JGJACOB GAKERI
1,549 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 it cannot extend the three-year deadline for filing employment claims, so suing late means losing your case entirely.

What this practically means

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Executive summary

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The Claimant, formerly the Respondent's Plants Operations and Logistics Manager who alleged constructive dismissal and unilateral salary deductions, sought leave to file suit out of time under Section 90 of the Employment Act, 2007. Her earlier suit filed in the Chief Magistrate's Court on 5th May 2021 was dismissed on 6th July 2023 after a preliminary objection succeeded on the ground that her salary exceeded the Kshs.80,000 jurisdictional threshold. She argued, relying on Elias Kibathi v Attorney General and Magethe Joseph Kiarie v Eco Bank, that the court had discretion to enlarge time under Section 12(3) of the Employment and Labour Relations Court Act despite Section 90's three-year bar. The Respondent, while noting it was not opposed, submitted that Section 90 is mandatory and ousts the court's jurisdiction to extend time. The court held that the residual power in Section 12(3)(viii) to grant 'any other appropriate relief' must be construed ejusdem generis with the specific orders in Section 12(3)(i)-(vii), and that Section 90 is couched in mandatory terms with no proviso for extension. Applying Owners of Motor Vessel 'Lillian S', it stressed that limitation implicates jurisdiction and may be raised suo motu. The applicant was found to have slept on her rights, having had ample time to refile in the proper forum, and the motion was lodged over five months after dismissal. The Notice of Motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the court has discretion to enlarge time under Section 90 of the Employment Act, 2007

Holding

Section 90 is mandatory with no proviso for enlargement of time; no sustainable basis for discretion was shown

Reasoning

Section 12(3)(viii) of the ELRC Act ('any other appropriate relief') must be construed ejusdem generis with the specific orders in Section 12(3)(i)-(vii). Although counsel relied on authorities suggesting discretion exists, none cited a case where time was actually enlarged under Section 90. Limitation implicates jurisdiction, which the court can raise suo motu. The applicant slept on her rights and filed the motion more than 5 months after dismissal of her suit.

p. 4

Legal principles established

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  • Section 90 of the Employment Act, 2007 is couched in mandatory terms and has no proviso allowing enlargement of time
  • Limitation of time implicates the court's jurisdiction and may be raised suo motu

Court orders

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  1. 1.The Notice of Motion dated 15th December, 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1), 159(2)(d), 159(2)(e), 48
  • Employment Act, 2007Section 90
  • Employment and Labour Relations Court Act, 2011Section 12(3)
  • Civil Procedure ActSection 1B
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Elias Kibathi & another V Attorney General
    (2021) eKLR
  • Magethe Joseph Kiarie V Eco Bank Kenya Ltd
    (2015)
  • Itute Ingu & another V Isumael Mwakavi Mwendwa
    (1994) eKLR
  • Josephat Moteti Motanya V Amrutt Kenya Ltd
    (2017) eKLR
  • Beatrice Kahai Adagala V Postal Corporation of Kenya
    (2015) eKLR
  • Owners of Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd
    (1989) KLR
Jurisdiction invoked
Article 50(1) and 159(2)(d) and (e) of the Constitution of Kenya, 2010; Civil Procedure Act; Employment and Labour Relations Court Act, 2011; 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, "Shetty v Lean Energy Solutions Ltd (Miscellaneous Application E293 of 2023) [2024] KEELRC 423 (KLR)", Case Analysis (2024). Notice of Motion dated 15th December, 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/423/eng@2024-02-29

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