Thuri v Equity Bank Limited (Cause E127 of 2023) [2024] KEELRC 1133 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold of a preliminary objection
The Respondent's notice raising limitation and jurisdiction met the Mukisa Biscuits threshold as a pure point of law.
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.
Whether the claim was statute barred under Section 90 of the Employment Act
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.
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.
Whether the claim was founded on a continuing injury
No. The Claimant only sought dues due at termination; non-payment of terminal dues is not a continuing injury.
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.
Whether the court could extend limitation under Part III of the Limitation of Actions Act
No. The Claimant cited no specific provision and filed no application for extension of time.
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.
Legal principles established
#- 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
#- 1.The Respondent's Notice of Preliminary Objection dated 10th August, 2023 is merited and is allowed.
- 2.The court, lacking jurisdiction over the statute-barred suit, downed its tools.
- 3.There shall be no orders as to costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.