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ELRCStruck OutAppeal No E077 of 2022· [2024] KEELRC 2464 (KLR)

Nyamwinga v CMC Motors Group Limited (Appeal E077 of 2022) [2024] KEELRC 2464 (KLR)

Employment and Labour Relations Court
11 October 2024
ANAgnes Kitiku Nzei
1,558 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 struck out an appeal because the original claim was filed years late, confirming the three-year employment claim deadline cannot be extended.

What this practically means

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Executive summary

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This is a judgment of the Employment and Labour Relations Court at Nairobi delivered by Agnes Kitiku Nzei, J, on 11th October 2024, in an appeal against the decision of the Chief Magistrate's Court at Mombasa in Employment and Labour Relations Case No. 165 of 2019. The Appellant, a former branch cashier summarily dismissed on 30th June 2014 over the theft of Kshs.850,000/=, had sued the Respondent for declarations and monetary reliefs arising from alleged unfair termination. She was acquitted of the criminal charge in September 2018 and filed her claim in March 2019. The trial court dismissed the suit on 19th October 2022, having raised the issue of limitation suo motu under Section 90 of the Employment Act, holding the claim filed nearly two years outside the three-year limitation window and void for want of leave. On appeal, Nzei J declined to consider the six grounds of appeal, holding that the primary suit was filed almost five years after the cause of action, outside the mandatory limitation period in Section 89 (formerly Section 90) of the Employment Act, and was therefore incompetent and dead on arrival. Since the ELRC has no jurisdiction over an appeal from a statute-barred suit, and since the limitation period in such matters cannot be extended (as applied from Beatrice Kahai Adagala v Postal Corporation of Kenya), the court struck out the appeal. The court criticised the trial court's suggestion that leave to file an out-of-time employment claim could be sought. There was no order as to costs of the appeal, and each party was to bear its own costs in the court below. Note: the copy provided is a draft lacking party names and the appeal case number.

Key legal issues

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01

Competence of an appeal arising from a statute-barred suit

Holding

The appeal was incompetent because the primary suit was filed almost five years after the cause of action, outside the three-year limitation period under Section 89 (formerly Section 90) of the Employment Act, and the ELRC has no jurisdiction to entertain an appeal from a dead suit

Reasoning

The appellant's employment was terminated on 30th June 2014, so limitation ran from that date. The claim was filed on 7th March 2019, nearly five years later. Section 89 excludes employment claims from the extension provisions of the Limitation of Actions Act, so the suit was a nullity, and no appeal can flow from an incompetent suit.

p. 3
02

Whether the limitation period in employment claims can be extended

Holding

No; the limitation period under Section 89 (formerly Section 90) of the Employment Act is mandatory and cannot be extended, unlike claims in tort under Sections 27 and 28 of the Limitation of Actions Act

Reasoning

Relying on Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held Section 90 (now 89) is in mandatory terms and the limitation period is never extended in contract-based matters. The court further found the trial court erred in suggesting leave to file an out-of-time employment claim could be sought.

p. 4

Legal principles established

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  • A suit filed outside the limitation period under Section 89 (formerly Section 90) of the Employment Act is incompetent and dead on arrival, and the court has no jurisdiction over it or an appeal arising from it
  • Once the limitation period under Section 89 (formerly Section 90) of the Employment Act lapses, it cannot be extended; such matters are excluded from the extension provisions of the Limitation of Actions Act
  • A court may raise the issue of limitation suo motu even where neither party pleads it

Court orders

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  1. 1.The Appellant's appeal is struck out
  2. 2.No order as to costs of the appeal
  3. 3.Each party will bear its own costs of proceedings in the court below

Authorities

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Legislation

  • Employment Act, 2007Sections 89 (formerly 90), 40, 43, 45, 49, 50
  • Limitation of Actions Act (Cap 22)Sections 4(1), 27, 28
  • Labour Institutions ActSection 48
  • Penal CodeSection 281
  • Criminal Procedure CodeSection 210
  • International Labour Organization ConventionsConvention 158

Cases cited (3)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] EKLR
  • Devecon Limited v Samani
    [1995 – 1998] EA – P. 48
  • Josephat Ndirangu v Henkel Chemicals (E.A) Limited
    (2014) eKLR
On appeal from
Chief Magistrate's Court at Mombasa (Employment and Labour Relations Case No. 165 of 2019)
ELRC Case No. 165 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Chief Magistrate's Court in employment and labour relations matters; suit governed by Sections 89 (formerly 90) of the Employment Act, 2007

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, "Nyamwinga v CMC Motors Group Limited (Appeal E077 of 2022) [2024] KEELRC 2464 (KLR)", Case Analysis (2024). Appeal No E077 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2464/eng@2024-10-11

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