Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in extract· [2024] KEELRC 1300 (KLR)

Abuya v Principal Secretary, Ministry of Health (Cause E565 of 2020) [2024] KEELRC 1300 (KLR)

Employment and Labour Relations Court
29 May 2024
BOByram Ongaya
898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The applicant, a former employee, applied by notice of motion dated 31st January 2024 for review and setting aside of the court's judgment of 7th December 2023, invoking sections 3, 3A, 63(e) and 80 of the Civil Procedure Act, Order 45 rules 1 and 2 of the Civil Procedure Rules, 2010 and rule 33 of the ELRC (Procedure) Rules, 2016. He argued that there was an error apparent on the face of the record because the court had, in the respondent's submissions, considered limitation without the respondent having specifically pleaded the statute of limitations under Order 2 rule 4 of the Civil Procedure Rules; that the submissions were never served; that no certificate of service had been issued under section 51 of the Employment Act; and that his constitutional rights under Articles 25(c), 41 and 51 were violated. The respondent, through the Attorney General, opposed via the replying affidavit of Leonard Ngotho Nyathira, contending that jurisdiction and limitation under section 90 of the Employment Act were raised in its submissions, that a preliminary objection on jurisdiction may be raised at any time, and that the application was an abuse of process. The court, per Byram Ongaya, Principal Judge, held that the claimant resigned on 13th June 2016, so the suit filed in 2020 was time barred under section 90, and that no known ground of review was established - the applicant was merely asking the court to change its analysis, which is a matter for appeal. The application for review was dismissed with costs.

Key legal issues

#
01

Grounds for review under rule 33 of the ELRC (Procedure) Rules, 2016

Holding

The applicant raised no known ground for review; disagreement with the court's analysis is a matter for appeal

Reasoning

The court held that the applicant had not established any of the recognised grounds of review such as discovery of new matter, mistake or error apparent on the face of the record, or sufficient reason. Asking the court to redo its analysis in the applicant's favour is appellate in nature. The respondent's submissions on that point were upheld and the application failed.

p. 3
02

Limitation under section 90 of the Employment Act

Holding

The suit was time barred because the claimant resigned on 13.06.2016 and the three-year limitation period had lapsed when the suit was filed in 2020

Reasoning

The court reaffirmed its earlier finding on limitation, reasoning from the claimant's own demonstrated resignation date. The claimant's contentions that the employment relationship subsisted pending disciplinary clearance and that no certificate of service was issued did not stop time from running under section 90.

p. 3

Legal principles established

#
  • Where a judgment has become final, a party seeking to revisit the court's analysis and findings must pursue an appeal, not a review
  • A claim filed beyond the three-year limitation period in section 90 of the Employment Act is time barred, and limitation runs from the date employment ceased by resignation

Court orders

#
  1. 1.The application for review dated 31st January 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Sections 3, 3A, 63(e) and 80 of the Civil Procedure Act Cap 21; Order 45 rules 1 & 2 of the Civil Procedure Rules, 2010; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abuya v Principal Secretary, Ministry of Health (Cause E565 of 2020) [2024] KEELRC 1300 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1300/eng@2024-05-29

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