Issa Mutungi & Co Advocates v Sitai (Appeal E026 of 2023) [2024] KEELRC 1492 (KLR)
The bottom line
#A Kenyan court threw out a pregnancy dismissal award because the employee filed her case just 24 days past the strict three-year legal deadline.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction where suit filed outside Section 90 limitation period
The claim filed on 25 January 2022, 24 days after the 3-year period lapsed on 1 January 2022, was statute-barred; the trial court moved without jurisdiction and the judgment was set aside
Termination was on 1 January 2019, so the claim had to be filed on or before 31 December 2021. The respondent filed on 25 January 2022, 24 days late. Section 90 is mandatory and a day outside the limit cannot be cured. Pleading discrimination does not extend time. The objection, though not raised below, is a pure point of law raisable at any stage.
Discrimination on account of pregnancy
The trial court's finding of discrimination was erroneous; termination while pregnant is not per se discriminatory and the employee must particularise the discriminatory conduct
The respondent was employed while already pregnant, made no application for maternity leave, and did not allege differential treatment from other employees who took maternity leave. Section 5 of the Employment Act protects against discrimination, but the burden lies on the claimant to prove that the conduct complained of is not rational and amounts to discrimination.
Termination of a probationary employee
Probation does not excuse an employer from due process; termination for poor performance requires notice and hearing under Section 41, and treating a probationer differently is an unfair labour practice
The appellant conceded termination was for unsatisfactory performance during probation. The court noted changed jurisprudence, relying on Monica Munira Kibuchi, that probationary employees are entitled to fair hearing as a constitutional requirement. However, this point did not save the judgment, which fell to the limitation objection.
Legal principles established
#- Section 90 of the Employment Act imposes a mandatory 3-year limitation period; a claim filed outside it cannot be cured and the court is denied jurisdiction
- A claim pleading constitutional/discrimination protections does not extend the 3-year limitation period under Section 90
- An employee on probation is entitled to due process, including notice and hearing under Section 41 of the Employment Act, before termination for poor performance
- The mere fact of termination while an employee is pregnant is not in itself discriminatory; the employee must particularise the grounds of discrimination
- An NSSF statement is not a primary record of employment and does not define or confer employment
Court orders
#- 1.The appeal is allowed
- 2.The judgment in Kilifi CMELRC No. E001 of 2022 is set aside in its entirety
- 3.The appellant is awarded 50% of the due costs
- On appeal from
- Kilifi MCELRC (Employment and Labour Relations Court at Kilifi)
- E001 of 2022
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act / Civil Procedure Act (not expressly cited); appeal from the trial court's judgment of 17 October 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issa Mutungi & Co Advocates v Sitai (Appeal E026 of 2023) [2024] KEELRC 1492 (KLR)", Case Analysis (2024). Kilifi MCELRC Appeal (from Kilifi CMELRC No. E001 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1492/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.