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ELRCOtherNot stated in judgment· [2024] KEELRC 2549 (KLR)

Chogo v Nairobi Hospital (Cause E661 of 2020) [2024] KEELRC 2549 (KLR)

Employment and Labour Relations Court
18 October 2024
SRSTELLA RUTTO
1,020 words in judgment
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The bottom line

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A Kenyan employment claim filed exactly three years after dismissal is on time, because the day of dismissal is excluded when counting the limitation period.

What this practically means

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Executive summary

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The Claimant sued the Respondent by a Statement of Claim filed in October 2020, alleging that he was employed as a Ward Attendant from 3rd October 1997 and summarily dismissed on 16th October 2017 on grounds of involvement in the theft of patients' food at the MCF Ward Kitchenette. He sought one month's salary in lieu of notice, compensatory damages for unlawful dismissal, reinstatement, costs and interest. The Respondent filed a Notice of Preliminary Objection dated 11th January 2024 contending that the suit was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act, the cause of action having arisen on 16th October 2017. Only the Respondent filed submissions, relying on Divecon v Samani to argue that the court had no power to extend time in employment matters. The court framed a single issue: whether the suit was time-barred under Section 90. It held that the cause of action arose on 16th October 2017 when the Claimant was notified of the separation, and applying Section 57(a) of the Interpretation and General Provisions Act, which excludes the day of the event in computing time, the suit filed on 19th October 2020 was lodged on the last day of the third year and was therefore not statute-barred. The Preliminary Objection was overruled with costs in the cause. The substantive claim remains for hearing; nothing in this ruling determines the merits of the dismissal.

Key legal issues

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01

Whether the suit, filed on 19th October 2020 for a dismissal effective 16th October 2017, is time-barred under Section 90 of the Employment Act

Holding

The suit is not statute-barred; the claimant filed on the last day of the third year once the date of dismissal is excluded from the computation.

Reasoning

Section 90 of the Employment Act imposes a mandatory three-year time bar on actions arising out of the Employment Act or a contract of service. The cause of action arose on 16th October 2017, the date the claimant was notified of the summary dismissal. Section 57(a) of the Interpretation and General Provisions Act requires that the day of the event be excluded when computing a period of days. Applying that rule, the suit filed on 19th October 2020 fell on the last date of the third year and was therefore within time.

p. 2

Legal principles established

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  • A cause of action arising from summary dismissal accrues on the date the employee is notified of the separation, and in computing the three-year limitation period under Section 90 of the Employment Act the day of dismissal is excluded per Section 57(a) of the Interpretation and General Provisions Act.

Court orders

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  1. 1.The Preliminary Objection dated 11th January 2024 is overruled
  2. 2.Costs shall be in the cause
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over employment claims; limitation governed by Section 90 of the Employment 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, "Chogo v Nairobi Hospital (Cause E661 of 2020) [2024] KEELRC 2549 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2549/eng@2024-10-18

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