Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2024] KEELRC 794 (KLR)

Njoroge v NCBA Bank Kenya PLC Formerly NIC Bank Ltd (Miscellaneous Case E285 of 2023) [2024] KEELRC 794 (KLR)

Employment and Labour Relations Court
17 April 2024
JGJacob Gakeri
2,102 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to let a former bank employee sue 15 years after dismissal, ruling that private settlement talks do not extend filing deadlines.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent bank from September 26, 1997 until his employment was terminated on May 9, 2008, filed an application dated December 8, 2023 seeking leave to file suit out of time, asserting that he had pursued out-of-court settlement with the respondent's representatives. The respondent filed a notice of preliminary objection dated December 28, 2023 contending that section 90 of the Employment Act, 2007 denied the court jurisdiction to extend time. The applicant relied on Gatune v Headmaster and authorities on doing justice, arguing he was misguided on the law and that no prejudice would befall the respondent. The respondent cited Beatrice Kahai Adagala, Rift Valley Railways and David Ngugi Waweru. Applying the Mukisa Biscuits test and the Lillian S jurisdiction principle, the court upheld the objection. It held that since the termination pre-dated the Employment Act's commencement on June 2, 2008, section 90 was inapplicable and the operative law was the Limitation of Actions Act, which permits extension only on Part III grounds (disability, acknowledgment and payment, fraud, mistake, ignorance of material facts) - none pleaded. Negotiations do not postpone the running of time, and the applicant, whose six-year window expired in May 2014, was indolent for over eight years without credible explanation. The Gatune case was distinguished as the applicant pleaded no disability. The application was dismissed as the suit is statute-barred, with each party bearing their own costs.

Key legal issues

#
01

Whether the preliminary objection on jurisdiction is merited

Holding

It is merited; the suit is statute-barred and the court lacks jurisdiction to extend time

Reasoning

The Employment Act, 2007 did not apply to a May 2008 termination, so section 90 was inapplicable; the operative law was the Limitation of Actions Act, which allows extension only on the Part III grounds of disability, acknowledgment/payment, or fraud/mistake. The applicant pleaded none, and negotiations do not toll time.

p. 5
02

Whether delay in filing can be excused on account of out-of-court negotiations

Holding

No; negotiations do not stop time running, and the applicant was indolent for over 8 years beyond the six-year limitation period

Reasoning

Even assuming a year of genuine negotiations before filing, the termination occurred in May 2008, time expired in May 2014, and the application came in December 2023. The applicant gave no credible explanation and pleaded no disability, distinguishing Gatune.

p. 4

Legal principles established

#
  • Section 90 of the Employment Act, 2007 did not apply to a termination predating the Act's commencement on June 2, 2008; the Limitation of Actions Act governs such claims
  • Negotiations or other forms of dispute resolution do not postpone the running of limitation time

Court orders

#
  1. 1.The respondent's preliminary objection is upheld - the court has no jurisdiction to hear and determine the application, the applicant's suit being statute barred
  2. 2.Parties shall bear their own costs

Authorities

#

Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1); Part III
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (10)

  • YH Wholesalers Ltd v Kenya Revenue Authority
    (2021) eKLR
  • Gatune v The Headmaster, Nairobi Technical High School & another
    (1986) eKLR
  • Branco Arabe Espanol v Bank of Uganda
    (1999) 2 EA 22
  • Omulele & Tolo Advocates v Mount Holdings Ltd
    (2018) eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    (2015) eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    (2016) eKLR
  • David Ngugi Waweru v Attorney General & another
    (2017) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • David Stephen Gatune v Headmaster, Nairobi Technical High School & another
Jurisdiction invoked
Jurisdiction under the Employment Act and Limitation of Actions Act challenged via preliminary objection

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njoroge v NCBA Bank Kenya PLC Formerly NIC Bank Ltd (Miscellaneous Case E285 of 2023) [2024] KEELRC 794 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/794/eng@2024-04-17

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