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ELRCStruck OutNot stated in the judgment· [2024] KEELRC 1028 (KLR)

Mutuku v Multichoice Kenya Limited & another (Cause E1039 of 2023) [2024] KEELRC 1028 (KLR)

Employment and Labour Relations Court
17 April 2024
NMNzioki wa Makau
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Respondents filed a preliminary objection dated 27th February 2024 contending that the Court lacked jurisdiction because the Claimant's claim, filed on 18th December 2023, was time barred under section 90 of the Employment Act, the cause of action having accrued on his summary dismissal on 27th November 2020. The Claimant opposed, arguing that he lodged an internal appeal on 7th December 2020 and received its outcome on 18th December 2020, so time ran only from exhaustion of the internal process, making his filing exactly within three years. He relied on authorities holding that time stands still while alternative dispute resolution mechanisms are engaged, and further argued the preliminary objection raised issues of fact unfit for determination on a pure point of law. The Respondents relied on section 90 and on authority that an internal appeal does not hold accrual of the cause of action in abeyance. The Court held that limitation ran from the date of dismissal on 27th November 2020, making the claim filed 18th December 2023 late by almost a month. The preliminary objection was upheld and the suit struck out as time barred, with costs awarded to the Respondents. The judgment underscores that limitation in employment claims is strict and that pursuing internal appeals does not extend the statutory three-year period.

Key legal issues

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01

Whether an internal appeal process postpones accrual of the cause of action for limitation purposes

Holding

No; time runs from the date of dismissal notwithstanding the internal appeal

Reasoning

The court held that limitation ran from the date of summary dismissal. The Claimant's argument that time stands still during internal dispute resolution mechanisms was rejected. His claim filed on 18th December 2023 was almost a month late against the 27th November 2023 deadline, and the suit was therefore struck out as time barred.

p. 4
02

Whether limitation goes to jurisdiction

Holding

Yes; a time-barred claim deprives the court of jurisdiction

Reasoning

Following the parties' submissions citing Owners of the Motor Vessel 'Lillian S', the court treated the statutory time bar as a jurisdictional bar justifying striking out the suit on a preliminary objection.

p. 1

Legal principles established

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  • Time under section 90 of the Employment Act runs from the date of dismissal; an internal appeal does not suspend accrual of the cause of action.

Court orders

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  1. 1.The suit is struck out as it is time barred
  2. 2.The Claimant to pay costs for the successful preliminary objection

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 89
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Constitution of KenyaArticle 159
  • Fair Administrative Action Actsection 9(2)

Cases cited (8)

  • Nyakundi Okerio & another v Elijah Sokobe Obot & 2 others
    [2021] eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • Daqare Transporters Limited v Zainab Hashi
    [2021] eKLR
  • Ahmed Noorani & another v Rajendra Ratilal Sanghani
    [2020] eKLR
  • Desidery Tyson Otieno Onyango v Rift Valley Ralways [Kenya] Limited
    [2014] eKLR
  • Hawkins Wagunza Musonye v Rift Valley Railways Kenya Limited
    [2014] eKLR
  • Republic v Joe Mucheru, Cabinet Secretary Ministry of Information Communication and Technology & 2 others; Katiba Institute & another (Ex parte); Immaculate Kasait, Data Commissioner (Interested Party)
    (Judicial Review Application E1138 of 2020) [2021] KEHC 122 (KLR)
Jurisdiction invoked
Section 90 of the Employment Act (limitation), invoked on a preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Mutuku v Multichoice Kenya Limited & another (Cause E1039 of 2023) [2024] KEELRC 1028 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1028/eng@2024-04-17

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