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ELRCDismissedNot stated in judgment· [2024] KEELRC 2410 (KLR)

Bosire v Telkom Kenya Limited & another (Cause E038 of 2024) [2024] KEELRC 2410 (KLR)

Employment and Labour Relations Court
2 October 2024
NMNzioki Wa Makau
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a 13-year-old unfair termination claim, confirming that employment contract suits must be filed within three years.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Nzioki Wa Makau J, ruled on a preliminary objection dated 4th June 2024 by the 1st Respondent, joined in by the 2nd Respondent, against a Claimant's suit arising from termination of employment on 30th June 2011. The objectors contended that under section 90 of the Employment Act the suit, filed over twelve years after the cause of action accrued, was time barred, and that the Court had no jurisdiction to extend time for claims founded on a contract of service. They relied on authorities including Michira v Aegis Kenya Limited, Kitsapha v Teachers Service Commission, Peter Nyamai v M.J. Clarke Limited, John Kiiru Njiiri v University of Nairobi, J Njunge v Muasya and Beatrice Kahai Adagala v Postal Corporation of Kenya, all holding section 90 mandatory and extension of time available only for tort claims under sections 27 and 28 of the Limitation of Actions Act. The Claimant filed no submissions and nothing in opposition. The Court framed two issues: whether the cause of action was limitation barred, and if so, whether time could be extended. Holding section 90 couched in mandatory terms, the Court found limitation expired in June 2014, declared the claim dead on arrival and incapable of resuscitation, and held itself bereft of jurisdiction to extend time. The preliminary objection was upheld and the suit dismissed, with no order as to costs.

Key legal issues

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01

Limitation of employment contract claims under section 90 of the Employment Act

Holding

The suit, filed over 13 years after termination on 30th June 2011, is time barred; the limitation period expired in June 2014

Reasoning

Section 90 of the Employment Act is framed in mandatory terms ('no civil action or proceedings... shall lie or be instituted unless it is commenced within three years'). The Claimant's employment was terminated on 30th June 2011, so limitation ran to June 2014. The suit was filed well beyond that window and the Court lacks any discretion to resuscitate a time-barred contract claim.

p. 3
02

Whether the Court can extend time for filing claims founded on contract of employment

Holding

No - the Court is bereft of jurisdiction to extend time for suits not filed within three years; extension is only possible in tort claims under sections 27 and 28 of the Limitation of Actions Act

Reasoning

Relying on Michira v Aegis Kenya Limited and the other authorities cited by the Respondents, the Court confirmed that section 90 admits no extension for contract-based claims. Extension of time under the Limitation of Actions Act applies only to causes founded on tort (negligence, nuisance or breach of duty), not contract of service.

p. 3

Legal principles established

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  • Section 90 of the Employment Act is mandatory; a claim based on a contract of service must be filed within three years and a claim filed outside that period is incapable of being sustained, with no discretion to extend time

Court orders

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  1. 1.Preliminary objection upheld; suit dismissed for being time barred
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsections 27 and 28

Cases cited (10)

  • Peter Nyamai & 7 others v M.J. Clarke Limited
    [2013] eKLR
  • Michira & 41 others v Aegis Kenya Limited t/a Leopard Beach Hotel
    [2023] eKLR
  • Kitsapha v Teachers Service Commission & another
    [2023] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • J Njunge v Muasya
    (Appeal E040 of 2023) [2024] KEELRC 265 (KLR) (9 February 2024)
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited v Samani
    [1995-1998] 1 EA P.45
  • Josephat Ndirangu v Henkel Chemicals (EA) Limited
    [2013] eKLR
  • Peter Katithi Kithome v Laboratory & Allied Limited
    [2021] eKLR
  • Anthony Ashitakaya Akungwi v Inspector General of Police & 2 others
    [2017] eKLR
Jurisdiction invoked
Employment Act, section 90 (limitation of employment claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bosire v Telkom Kenya Limited & another (Cause E038 of 2024) [2024] KEELRC 2410 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2410/eng@2024-10-02

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