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ELRCAllowedNot stated in the judgment as provided· [2024] KEELRC 1726 (KLR)

Hart v Schenker Limited (Cause 4 of 2019) [2024] KEELRC 1726 (KLR)

Employment and Labour Relations Court
4 July 2024
ANAgnes Kitiku Nzei
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 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 Claimant, formerly the Respondent's Mombasa Branch Manager, sued claiming she was constructively terminated after resignation on 28/2/2017 following demotion and humiliation by the Respondent's Managing Director. She sought declarations, notice pay, 12 months' compensation, leave pay, damages, a certificate of service and interest. The Respondent, after leave to amend pleadings, filed an Amended Memorandum of Reply and Counter-Claim on 26/7/2023 alleging the Claimant breached her contract by resigning without the required three months' notice or payment in lieu, and sought Kshs 1,527,000. The Claimant moved to strike out the Counter-Claim under, inter alia, Rule 14(5) of the ELRC (Procedure) Rules and Order 2 Rule 15 of the Civil Procedure Rules, arguing it was filed over six years after the cause of action accrued, contrary to the three-year bar in Section 90 of the Employment Act, and without leave of the Court. The Respondent countered that a counter-claim takes its commencement date from the original action filed on 30/1/2019, hence within time. Holding Section 90 mandatory and a counter-claim to be a stand-alone suit subject to limitation law, the Court found the Counter-Claim statute-barred, noting Section 90 confers no jurisdiction to extend time and that the amendment leave did not cover it. The application was allowed: the Counter-Claim was struck out, costs awarded to the Claimant, and the main suit set down for hearing.

Key legal issues

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01

Whether a counter-claim founded on a time-barred cause of action can be sustained where the main claim was filed within time

Holding

No. A counter-claim is a stand-alone suit subject to the law of limitation; the Claimant's resignation of 28/2/2017 created a cause of action, and the Counter-Claim filed in 2023 was over six years later, hence statute-barred under Section 90 of the Employment Act.

Reasoning

The Court held Section 90 is couched in mandatory terms and unambiguous. Both parties' causes of action arose from the resignation on 28/2/2017. While the main suit filed on 30/1/2019 was within three years, the Respondent's Counter-Claim was raised over six years after accrual. The leave granted to amend pleadings did not extend to filing a time-barred counter-claim, since Section 90 confers no power to extend time.

p. 3
02

Whether leave granted for amendment of pleadings validated the filing of the Counter-Claim

Holding

No. The leave granted was for amendment of respective pleadings only; no leave was sought or granted for filing a counter-claim outside the statutory limitation period.

Reasoning

The Court distinguished the leave to amend pleadings from any leave that might permit a statute-barred claim, finding Section 90 gives the Court no jurisdiction to extend time. The counter-claim therefore stood without statutory basis regardless of the amendment leave.

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Legal principles established

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  • A counter-claim is a fresh, independent suit and must be brought within the statutory limitation period applicable to an ordinary claim.
  • Section 90 of the Employment Act does not confer jurisdiction on the Court to extend time for filing otherwise statute-barred employment claims.

Court orders

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  1. 1.The Respondent's Counter-Claim dated 5/7/2023 is struck out
  2. 2.Costs of the application and of the Counter-Claim are awarded to the Claimant, to be taxed after the event in the suit
  3. 3.The Claimant's suit to be set down for hearing

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 12, 20 and 90
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court (Procedure) RulesRules 14(5) and 17
  • Civil Procedure RulesOrder 2 Rule 15(1)(a), (b), (c) & (d); Order 51
  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (3)

  • John Ogutu Rogoma v Elimu Co-operatives Savings & Credit Limtied
    [2013] eKLR
  • Christone Charo Matesho v Charles Richard Newton
    [2022] eKLR
  • Kenya Wine Agencies v Yobesh Amoro
    [2018] eKLR
Jurisdiction invoked
Sections 3, 12, 20 and 90 of the Employment and Labour Relations Court Act

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, "Hart v Schenker Limited (Cause 4 of 2019) [2024] KEELRC 1726 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1726/eng@2024-07-04

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