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ELRCDismissedNot stated in judgment· [2024] KEELRC 2731 (KLR)

Kosgei v Wells Fargo Limited (Miscellaneous Application E009 of 2024) [2024] KEELRC 2731 (KLR)

Employment and Labour Relations Court
7 November 2024
MOMaureen Onyango
1,938 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—wait too long and your case is permanently dead.

What this practically means

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Executive summary

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The Applicant, dismissed in July 2020, brought an application dated 16th October 2023 under section 27 of the Limitation of Actions Act, Orders 37 and 50 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, section 89 of the Employment Act and Article 159(2)(d) of the Constitution, seeking leave to file suit out of time for alleged unfair dismissal and non-payment of terminal dues. He attributed the delay to COVID-19 court disruptions, his wife's prolonged illness and hospitalisation costs, and claimed he had an arguable case. Being an ex parte originating summons under section 27, it was heard without the Respondents and disposed of by written submissions, in which the Applicant relied on authorities on excusable delay and estoppel by conduct. Maureen Onyango J framed a single issue: whether the application was merited. The court held that section 90 of the Employment Act, 2007, read with section 4(1) of the Limitation of Actions Act, requires employment claims to be filed within three years in mandatory terms, and that the Court of Appeal has consistently held that time cannot be extended in contract-based claims. Section 27 of the Limitation of Actions Act applies only to negligence actions, not contract. The court further held that limitation is not a technicality curable under Article 159(2)(d) but extinguishes the right and goes to the root of jurisdiction. The application was dismissed as without merit. No costs order was recorded.

Key legal issues

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01

Whether the court has jurisdiction to grant leave to file suit out of time in an employment claim under section 27 of the Limitation of Actions Act

Holding

The court has no such jurisdiction; employment claims must be brought within three years under section 90 of the Employment Act, and section 27 applies only to negligence actions, not contract.

Reasoning

Section 90 of the Employment Act, in mandatory terms, limits employment claims to three years. Section 27 of the Limitation of Actions Act, on its wording, applies only to actions for negligence, nuisance or breach of duty involving personal injuries, not to contract or contract-of-service claims. Court of Appeal precedent confirms the limitation period cannot be extended in contract matters. Limitation extinguishes the right and goes to jurisdiction, and cannot be cured by Article 159(2)(d).

p. 4
02

Whether limitation can be overlooked under Article 159(2)(d) of the Constitution

Holding

No; limitation goes to the root of jurisdiction and is not a procedural technicality.

Reasoning

The court held that limitation extinguishes a party's right to the benefit sought and operates as an estoppel, so it cannot be disregarded as a technicality. Time-barred matters may be entertained only under the specific circumstances of sections 26 and 27 of the Limitation of Actions Act, which the applicant did not invoke correctly.

p. 5

Legal principles established

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  • Courts lack jurisdiction to extend time to file employment-related claims out of time under section 90 of the Employment Act read with section 4(1) of the Limitation of Actions Act.
  • Limitation is not a procedural technicality curable under Article 159(2)(d) of the Constitution; it goes to jurisdiction.

Court orders

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  1. 1.The application dated 16th October 2023 is dismissed

Authorities

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Legislation

  • Limitation of Actions Actsection 27
  • Limitation of Actions Actsection 28(1)
  • Limitation of Actions Actsection 30
  • Limitation of Actions Actsection 4(1)
  • Limitation of Actions Actsections 26 and 27
  • Civil Procedure Rules 2010Order 37 Rule 6
  • Civil Procedure Rules 2010Order 50 Rule 6
  • Civil Procedure Actsections 3 and 3A
  • Employment Actsection 89
  • Employment Act, 2007section 90
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (7)

  • Allan Otieno Osula v Gurdev Engineering & Construction Ltd
    [2015] eKLR
  • Njoroge v Kimani
    KECA 1188(KLR) (RULING)
  • Rosemary Wanjiru Kungu v Elijah Macharia Githinji & Another
    [2014] eKLR
  • Maria Machocho v Total (K) Ltd
    Cause No. 2 of 2012
  • Divecon Ltd v Samani
    [1995-1998] 1 EA 48
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Sections 27 and 28 of the Limitation of Actions Act; Sections 3 and 3A of the Civil Procedure Act; Order 37 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules 2010; Article 159(2)(d) 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, "Kosgei v Wells Fargo Limited (Miscellaneous Application E009 of 2024) [2024] KEELRC 2731 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2731/eng@2024-11-07

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