Mohammed v African Banking Corporation (Cause 43 of 2020) [2024] KEELRC 2299 (KLR)
The bottom line
#A Kenyan court blocked an employer from reviving a six-year-old loan claim through a counter-claim because employment claims in Kenya must be filed within three years.
What this practically means
#Executive summary
#Key legal issues
#Whether a counter-claim introduced by amendment of pleadings is subject to the law of limitation
Yes. A counter-claim is an independent cross-action and must pass the statutory limitation test; the Respondent's counter-claim, founded on termination of employment on or about 25th June 2018, was time-barred under Section 89 of the Employment Act.
The court held that a counter-claim is a counter-suit, substantially governed by the same pleading principles as a statement of claim in a cross-action, and limitation applies to it as to an ordinary claim. Section 89 of the Employment Act is mandatory and couched in unambiguous terms. The alleged cause of action arose upon termination of the Claimant's employment on 25th June 2018, and the suit was filed on 13th August 2020 within time, but the counter-claim would be raised some six years after the cause of action arose. Allowing the amendment would amount to granting leave to institute an employment claim outside the statutory limitation period, which the court could not sanction.
Whether the amendment limited to deletion of paragraph 13 of the Reply should be allowed
Yes, the amendment of the Reply confined to deletion of paragraph 13 was allowed, to be effected within 14 days.
The court observed that apart from the deletion of paragraph 13, no substantive amendment of the Reply was intended; the rest of the proposed amendment was the introduction of a time-barred counter-claim. The court separated the permissible amendment (the deletion) from the impermissible introduction of the counter-claim, allowing the former and disallowing the latter, and directed that an amended Reply be filed within 14 days.
Legal principles established
#- A counter-claim is a fresh, independent suit and must be instituted within the limitation period prescribed by statute; a court cannot permit a time-barred claim to be introduced through amendment of pleadings.
- Section 89 of the Employment Act, limiting employment claims to three years, is in mandatory terms and once it lapses the door to redress on that cause of action is permanently closed.
Court orders
#- 1.The Respondent shall amend its Reply to the Claimant's claim dated 26/9/2020 and filed in Court on 1/10/2020 only by deleting paragraph 13 thereof, and an amended Reply shall be filed within 14 days of the Ruling
- 2.The intended introduction of a Counter-Claim as indicated in the filed draft is disallowed
- 3.Each party shall bear its own costs of the application
- 4.The suit shall be prosecuted within seven (7) months from the date of the Ruling
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; not expressly cited in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed v African Banking Corporation (Cause 43 of 2020) [2024] KEELRC 2299 (KLR)", Case Analysis (2024). Cause No 43 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2299/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.