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ELRCStruck OutNot stated in judgment· [2024] KEELRC 1744 (KLR)

Njeri (Suing as the Legal Representative of the Estate of Anthony Nguri Karori) v East African Portland Cement Company PLC (Miscellaneous Application E841 of 2022) [2024] KEELRC 1744 (KLR)

Employment and Labour Relations Court
5 July 2024
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The ELRC struck out a widow's claim for her late husband's dues because it was filed more than three years after his death, which is when the countdown started.

What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 16th December 2022 seeking dismissal of the Claimant's suit on the grounds that it was time barred under Section 90 of the Employment Act, that the Court lacked jurisdiction, and that the claim was vexatious and an abuse of process. The Claimant, the widow of the deceased employee Antony Ngugi Karuri, opposed the objection, arguing that the Respondent's letters of 16th January 2020 and 28th June 2021 admitting that terminal dues were owed, payable upon obtaining letters of administration, constituted an admission creating a fresh cause of action, so the claim filed in November 2022 was within three years. The Court applied the Mukisa Biscuit test, holding that the objection was a pure point of law on undisputed facts. Construing Section 90 of the Employment Act, the Court held that the cause of action accrues upon cessation of the employment contract, which occurred on 29th June 2019 upon the employee's death, not upon the employer's admission of liability. The claim therefore ought to have been filed by 29th June 2022, and the Claimant filed late with no explanation and without obtaining a limited grant. Following Michira & 41 others v Aegis Kenya Ltd, the Court held that Section 90 is mandatory and the Court has no jurisdiction to extend time. While sympathising with the Claimant, the Court sustained the objection, struck out the suit as incompetent, and made no orders as to costs, while urging the Respondent in the spirit of Alternative Justice and Corporate Social Responsibility to consider settling the deceased's dues for the benefit of his family.

Key legal issues

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01

When does limitation begin to run under Section 90 of the Employment Act where the employment ends by death of the employee?

Holding

Time runs from the cessation of the contract, i.e. the date of the employee's death, not from the employer's subsequent admission of liability

Reasoning

Section 90 requires claims arising out of employment to be filed within three years of the act or default complained of. The court held that the cause of action accrues on cessation of the contract. Since the employer-employee relationship ended on 29th June 2019 upon the deceased's death, the three-year period expired on 29th June 2022, and the claim filed in November 2022 was out of time. The Respondent's letters admitting owing dues did not create a fresh cause of action.

02

Whether the Court can extend time or excuse non-compliance with Section 90

Holding

No - Section 90 is mandatory and the Court has no jurisdiction to extend time; the suit filed out of time must be struck out

Reasoning

Relying on Michira & 41 others v Aegis Kenya Ltd, the court held that Section 90 is framed in mandatory terms and the Court is denied jurisdiction to extend time. The Claimant offered no explanation for the delay or for failing to obtain a limited grant to file in time. The court expressed sympathy but held the statute must take its course, only urging the Respondent to consider settling the dues voluntarily.

p. 3

Legal principles established

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  • Under Section 90 of the Employment Act, the cause of action accrues upon cessation of the employment contract, not upon the employer's admission of liability for dues
  • Section 90 of the Employment Act is mandatory and this Court has no jurisdiction to extend the three-year limitation period

Court orders

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  1. 1.The Notice of Preliminary Objection by the Respondent is sustained
  2. 2.The suit is struck out as incompetent
  3. 3.No orders as to costs
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims

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, "Njeri (Suing as the Legal Representative of the Estate of Anthony Nguri Karori) v East African Portland Cement Company PLC (Miscellaneous Application E841 of 2022) [2024] KEELRC 1744 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1744/eng@2024-07-05

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