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ELRCDismissedNotice of Motion dated 31st October 2023· [2024] KEELRC 712 (KLR)

Chege & 62 others v Put Sarajevo General Engineering Company (Miscellaneous Application E256 of 2023) [2024] KEELRC 712 (KLR)

Employment and Labour Relations Court
4 April 2024
LNLinnet Ndolo
1,421 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 contract claims, even when an advocate caused the delay.

What this practically means

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Executive summary

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The Applicants, former employees of the Respondent, sought leave by Notice of Motion dated 31st October 2023 to file a claim for unpaid salaries and wages after the lapse of the limitation period. Their salaries were suspended in November 2017 and they instructed an advocate who, instead of filing an ordinary claim, instituted a constitutional petition at the Kisumu ELRC (Petition No 70 of 2018). That petition was dismissed summarily on 17th November 2021 for failing to raise constitutional questions, but the advocate never informed the Applicants, who learned of the outcome only on 9th October 2023, by which time the limitation period had expired. The Respondent opposed the application through a replying affidavit sworn by its Executive Chairman, Usamah Timimi, and a Notice of Preliminary Objection dated 9th January 2024, arguing that the intended claim was incurably time barred under Section 90 of the Employment Act, res judicata in light of the Kisumu judgment, and an abuse of process. The Court, per Linnet Ndolo J, framed a single issue: whether it could extend time for filing the claim. Relying on the binding Court of Appeal decision in Beatrice Kahai Adagala v Postal Corporation of Kenya, the Court held that Section 90 of the Employment Act is mandatory and allows no extension of time for contract-based claims; such extension is available only in tort claims under Sections 27 and 28 of the Limitation of Actions Act. The Court also observed that a party cannot escape limitation by blaming an advocate. Having found the claim statute barred, the Court declined to consider res judicata. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Court has discretion to extend the limitation period under Section 90 of the Employment Act

Holding

The Court has no power to extend time under Section 90; the intended claim is statute barred and the application must fail, without need to consider res judicata

Reasoning

Section 90 of the Employment Act, which requires claims arising from contracts of service to be commenced within three years, is mandatory and admits no extension. The Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya, which binds this Court, held that the limitation period can only be extended in claims founded on tort under Sections 27 and 28 of the Limitation of Actions Act. Blame assigned to a former advocate cannot displace a statutory bar.

p. 4

Legal principles established

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  • Section 90 of the Employment Act is in mandatory terms; a claim based on a contract of employment must be filed within 3 years and the limitation period is never extended in matters based on contract

Court orders

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  1. 1.The application dated 31st October 2023 is declined
  2. 2.Each party to bear their own 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 (3)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited v Samani
    [1995-1998] 1 EA P. 48
  • Josephat Ndirangu v Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; application for extension of time to file a claim under Section 90 of the Employment Act

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, "Chege & 62 others v Put Sarajevo General Engineering Company (Miscellaneous Application E256 of 2023) [2024] KEELRC 712 (KLR)", Case Analysis (2024). Notice of Motion dated 31st October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/712/eng@2024-04-04

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