Boru v Mengesha & 3 others (Miscellaneous Application E009 of 2023) [2024] KEELRC 1002 (KLR)
The bottom line
#Kenya's Employment Court confirmed it cannot extend the strict three-year deadline for filing employment claims, so waiting for a related criminal case to finish loses your right to sue.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has discretion to grant leave to file suit out of time under section 90 of the Employment Act
No - section 90 is mandatory and admits no extension after three years
The court applied the Salat extension-of-time principles but found the threshold of a reasonable explanation for delay unmet. It held that a pending criminal case over the same dispute does not suspend the limitation period, since civil and criminal proceedings may run concurrently. It further held that where a statute fixes a limitation period without an extension mechanism, no court may extend it, and section 90 contains no such mechanism.
Whether the pendency of Isiolo Criminal Labour Case No. 1 of 2019 constituted a reasonable/excusable reason for the delay
No - the delay was not excusable
Relying on the Njoroge v Kimani definition of excusable delay as unforeseeable delay beyond a party's control, the court found the Applicant's reliance on the criminal case unconvincing because nothing prevented her from filing the civil suit concurrently with the criminal proceedings. The cause of action was therefore not held in abeyance pending the criminal outcome.
Legal principles established
#- Where a statute limits time for bringing an action, no court has power to extend that time unless the statute itself allows extension
- Section 90 of the Employment Act does not provide room for extension of time after the three-year limitation period lapses
- Criminal proceedings founded on the same dispute do not suspend the limitation period for a civil employment claim
Court orders
#- 1.The Originating Summons dated 29th September 2023 is dismissed
- 2.No costs awarded to the Respondents
- Jurisdiction invoked
- Article 162(2) of the Constitution (ELRC jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boru v Mengesha & 3 others (Miscellaneous Application E009 of 2023) [2024] KEELRC 1002 (KLR)", Case Analysis (2024). Misc Application No E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1002/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.