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ELRCDismissedNot stated in the judgment (application by Notice of Motion dated 16th October 2023)· [2025] KEELRC 62 (KLR)

Waringa v Principal Secretary, Ministry of Environment and Forestry & 2 others (Miscellaneous Application E38 of 2023) [2025] KEELRC 62 (KLR)

Employment and Labour Relations Court
22 January 2025
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it cannot extend the three-year deadline for filing employment claims, so a worker's late pension and salary suit failed.

What this practically means

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Executive summary

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The applicant/claimant filed a Notice of Motion dated 15th August 2023 seeking enlargement of time to file an employment claim; it was dismissed on 9th October 2023 for non-attendance, and the file marked closed. He then filed the present application dated 16th October 2023 under sections 1A, 1B, 13 and 3A of the Civil Procedure Act and Order 12 Rule 6(1) of the Civil Procedure Rules, seeking to set aside the dismissal order and that costs be costs in the cause, arguing that the registry failed to notify the parties of the hearing date. The respondent filed a notice of preliminary objection contending the application was defective for want of the annexed ruling, frivolous and incompetent. The court found the objection was not a true point of law but more a response. The single issue for determination was whether the application for reinstatement was merited. The court held it had first to consider jurisdiction. The underlying draft claim concerned pension and unpaid salary arising from employment, and the cause of action accrued on the applicant's mandatory retirement on 22nd November 2016; under section 89 of the Employment Act the three-year limitation period expired on or about 21st September 2019, while the dismissed application was filed on 20th September 2023. Following Sunyai v Judicial Service Commission & another and other authorities, the court held it lacks jurisdiction to extend limitation periods in employment claims, and reinstating the application would be futile. The application dated 16th October 2023 was dismissed with no order as to costs, considering the relationship between the parties and the cause of action. Delivered at Nairobi on 22nd January 2025 by Jemimah Keli, Judge.

Key legal issues

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01

Whether the notice of preliminary objection was a genuine point of law

Holding

The objection was not a true point of law but more of a response

Reasoning

The court found the objection raised only a technical issue concerning non-annexure of the ruling, and the respondent's submissions addressed enlargement of time rather than a pure point of law. It was therefore treated as a response, not a true preliminary objection.

p. 2
02

Whether the court can exercise discretion to reinstate the dismissed application seeking enlargement of time

Holding

The court cannot, because it lacks jurisdiction to enlarge the limitation period under section 89 of the Employment Act

Reasoning

The court first had to determine its own jurisdiction. The claims for pension and unpaid salary arose from employment, and the cause of action accrued on retirement on 22nd November 2016, making the claim time-barred after 21st September 2019. The application was filed on 20th September 2023, far outside the three-year period. Citing Sunyai v Judicial Service Commission and other authorities, the court held it has no jurisdiction to extend limitation in employment claims, so reinstating the application would be futile.

p. 3
03

Applicability of the Civil Procedure Rules to the ELRC

Holding

The Civil Procedure Rules apply only where there is lacuna in the ELRC's own rules

Reasoning

The court noted that the applicant approached it through the Civil Procedure Rules, but the ELRC has its own rules and the Civil Procedure Rules are only applied in cases of lacuna, such as in execution. Rule 80 of the ELRC Procedure Rules 2024 permits extension of time, but that jurisdiction cannot be used to overcome the statutory limitation in section 89 of the Employment Act.

p. 2

Legal principles established

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  • The ELRC has no jurisdiction to extend the limitation period prescribed by section 89 of the Employment Act for employment claims

Court orders

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  1. 1.The application dated 16th October 2023 is dismissed
  2. 2.No order as to costs, taking into account the relationship between the parties and the cause of action

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 13, 3A
  • Civil Procedure Rules 2010Order 12 Rule 6(1) and rule 7
  • ELRC Procedure Rules 2024Rule 80
  • Employment Act (Rev. 2024)section 89 (referred to at one point as section 90)
  • Limitation of Actions Act (Cap. 22)section 4(1)

Cases cited (6)

  • Sunyai v Judicial Service Commission & another
    [2017] KEELRC 107 (KLR)
  • Peter Nyamai & Others v M. J. Clarke Limited
  • Divecon v Samani
  • Timothy M. Mukalo v Reuben Alubale Shiramba & 3 Others
  • Charles Musa Kweyu v Wananchi Marine Products
  • Augustine Odhiambo Abiero v K.K. Security Ltd
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act and the ELRC Procedure Rules 2024 (Rule 80) invoked; Civil Procedure Act ss. 1A, 1B, 3A and Order 12 Rule 6(1) cited by the applicant

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, "Waringa v Principal Secretary, Ministry of Environment and Forestry & 2 others (Miscellaneous Application E38 of 2023) [2025] KEELRC 62 (KLR)", Case Analysis (2025). Not stated in the judgment (application by Notice of Motion dated 16th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/62/eng@2025-01-22

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