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ELRCDismissedNot stated in judgment· [2024] KEELRC 2600 (KLR)

Losiru v Kutoh & another (Sued as legal representatives of the Estate of the Late Petronila Jesang) (Miscellaneous Application E040 of 2023) [2024] KEELRC 2600 (KLR)

Employment and Labour Relations Court
24 October 2024
MOMAUREEN ONYANGO
1,476 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 confirmed it cannot extend the three-year deadline for filing unfair dismissal claims, so workers must sue promptly or lose their claims entirely.

What this practically means

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Executive summary

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The Applicant, who worked as a herdsman on the farm of the late Petronila Jesang at Moiben from 1st March 2004 to the end of September 2016 without salary or benefits, applied by a notice dated 16th October 2023 under sections 27(2), 28 and 30 of the Limitation of Actions Act, Order 37 Rule 6(2) of the Civil Procedure Rules 2010, and Articles 48 and 50 of the Constitution, seeking leave to file suit out of time against the Respondents - beneficiaries of the deceased's estate - for unfair dismissal, salary arrears, terminal benefits and general damages. He explained that the deceased's family had promised to compensate him with land, and that he had been vigilant since the Respondents took out Letters of Administration. The court framed a single issue: whether the application was merited. Relying on section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act, 2007, and on the decisions in Maria Machocho v Total (K) Ltd, Divecon Ltd v Samani and Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held that employment claims must be filed within three years and that it lacks jurisdiction to extend that period. Sections 27 and 28 of the Limitation of Actions Act apply only to tort claims in negligence, not contract. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the court has jurisdiction to extend time for filing an employment-related claim under sections 27, 28 and 30 of the Limitation of Actions Act

Holding

The application is dismissed; the court has no jurisdiction to extend time for employment claims founded on contract

Reasoning

Section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act, read together, mandate a three-year limitation period for employment claims. Section 90 is in mandatory terms and precludes extension. Sections 27 and 28 of the Limitation of Actions Act apply only to tort actions for negligence, not contract. Precedent confirms the limitation period is never extended in contract matters.

p. 3

Legal principles established

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  • Claims arising out of employment or a contract of service must be commenced within three years under section 90 of the Employment Act, and the court has no jurisdiction to extend that period
  • Sections 27 and 28 of the Limitation of Actions Act permitting extension of time apply only to actions founded on tort (negligence), not to actions founded on contract

Court orders

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  1. 1.The application dated 16th October 2023 is dismissed for lack of merit
  2. 2.No orders for costs - each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)
  • Limitation of Actions Actsection 27(1), (2), (3)
  • Limitation of Actions Actsection 28
  • Limitation of Actions Actsection 30
  • Employment Act, 2007section 90
  • Civil Procedure Rules 2010Order 37 Rule 6(2)
  • Constitution of KenyaArticles 48 and 50

Cases cited (4)

  • Maria Machocho –v- Total (K) Ltd
    Cause No. 2 of 2012
  • Divecon Ltd v Samani
    [1995-1998] 1 EA 48 at 54
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Josephat Ndirangu - vs - Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Sections 27(2), 28 and 30 of the Limitation of Actions Act; Order 37 Rule 6(2) of the Civil Procedure Rules 2010; Articles 48 and 50 of the Constitution of Kenya

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, "Losiru v Kutoh & another (Sued as legal representatives of the Estate of the Late Petronila Jesang) (Miscellaneous Application E040 of 2023) [2024] KEELRC 2600 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2600/eng@2024-10-24

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