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ELRCPartially AllowedCause No E127 of 2023· [2024] KEELRC 1133 (KLR)

Thuri v Equity Bank Limited (Cause E127 of 2023) [2024] KEELRC 1133 (KLR)

Employment and Labour Relations Court
2 May 2024
2,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 2nd May 2024 by Dr. Jacob Gakeri J, on the Respondent's Notice of Preliminary Objection dated 10th August 2023. The Respondent contended that the Claimant's claim, arising from termination of employment on 13th December 2019 but filed on 16th February 2023, was time barred under Section 90 of the Employment Act, 2007, which requires employment claims to be instituted within 3 years. The Claimant opposed, arguing the suit was saved by a continuing injury (alleged failure to pay terminal dues) and that the court could extend limitation under Part III of the Limitation of Actions Act. The court framed two issues: whether the notice met the threshold of a preliminary objection, and whether it was merited. Applying Mukisa Biscuits, the court held the notice raised a pure point of law, limitation, implicating jurisdiction. On the merits, it held that Section 90 is mandatory; the cause of action accrued on termination, so the suit filed over 3 years and 2 months later was statute barred. It rejected the continuing-injury argument, holding that non-payment of terminal dues is not a continuing injury within Section 90, and noted the Claimant had neither identified a relevant Part III provision nor filed any application to extend limitation. The preliminary objection was allowed; the court, lacking jurisdiction, downed its tools and made no orders as to costs.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The Respondent's notice raising limitation and jurisdiction met the Mukisa Biscuits threshold as a pure point of law.

Reasoning

Applying the classic formulations of Law JA and Sir Charles Newbold VP, a preliminary objection must be a point of law argued on the assumption that all facts pleaded by the other side are correct, without requiring ascertainment of facts or exercise of discretion. The notice raised limitation of time, an example expressly given in Mukisa Biscuits, implicating jurisdiction, so it qualified.

p. 3
02

Whether the claim was statute barred under Section 90 of the Employment Act

Holding

Yes. The cause of action accrued on termination on 13th December 2019; the suit filed on 16th February 2023 was outside the 3-year limitation period.

Reasoning

Section 90 is mandatory and in the negative. For an unlawful/unfair dismissal claim, the cause of action accrues on the date of termination. The suit was filed more than 3 years and 2 months later. Following Beatrice Kahai Adagala, limitation is never extended in contract-based claims, and Part III of the Limitation of Actions Act applies only to disability, mistake, fraud or ignorance of material facts.

p. 4
03

Whether the claim was founded on a continuing injury

Holding

No. The Claimant only sought dues due at termination; non-payment of terminal dues is not a continuing injury.

Reasoning

Relying on The German School Society v Ohany, a continuing wrong must create a continuing source of injury. The Claimant claimed general damages for dismissal and terminal dues accruing at termination, not monies unpaid during employment (which would attract the 12-month post-cessation rule). The Claimant also failed to identify any injury continuing to the date of filing.

p. 5
04

Whether the court could extend limitation under Part III of the Limitation of Actions Act

Holding

No. The Claimant cited no specific provision and filed no application for extension of time.

Reasoning

Part III covers extension in cases of disability, acknowledgement and part payment, fraud, mistake and ignorance of material facts, none invoked or shown. The Claimant relied on Part III generally without identifying an applicable provision, and the absence of any application for extension was a tacit acknowledgement that the suit was statute barred.

p. 6

Legal principles established

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  • A claim under Section 90 of the Employment Act, 2007 must be filed within 3 years of the act, neglect or default, and the limitation period is not extended for contract-based employment claims.
  • Non-payment of terminal dues after termination does not constitute a continuing injury under Section 90 of the Employment Act, 2007.
  • Once a court finds a suit statute barred, it lacks jurisdiction and must down its tools.

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 10th August, 2023 is merited and is allowed.
  2. 2.The court, lacking jurisdiction over the statute-barred suit, downed its tools.
  3. 3.There shall be no orders as to costs.

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions Act, Cap 22Section 4(1); Part III; Sections 27 and 28
  • Constitution of Kenya, 2010Articles 48, 159(2)(d), 162(2)
  • Civil Procedure Act, Chapter 21Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (12)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank
    [2012] eKLR
  • The German School Society & another v Ohany & another
    [2023] KECA 894
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Elias Kibathi & another v Attorney General
    [2021] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Mugendi v Kenyatta University
    [2013] eKLR
  • Rosemary Wanjiru Kungu v Elijah Macharia Githinji & another
    [2014] eKLR
  • Rift Valley Railways (K) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Davecon Ltd v Samani
    [1995-1988] EA 48
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010; jurisdiction on limitation governed by Section 90 of the 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, "Thuri v Equity Bank Limited (Cause E127 of 2023) [2024] KEELRC 1133 (KLR)", Case Analysis (2024). Cause No E127 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1133/eng@2024-05-02

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