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ELRCStruck Out· [2025] KEELRC 951 (KLR)

Mutunga v African Express Airways Limited (Employment and Labour Relations Cause E121 of 2024) [2025] KEELRC 951 (KLR)

Employment and Labour Relations Court
27 March 2025
1,110 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first-instance claim before the Employment and Labour Relations Court seeking enforcement of an award made by the Director of Occupational Safety and Health Services on 1st December 2016, following a fatal workplace accident on 23rd February 2016 at the Respondent's premises in which Raphael Mutunga Nguli died. The Respondent opposed the claim, raising a preliminary objection that the suit was statute barred under section 89 of the Employment Act, which requires claims arising from a contract of service to be filed within three years. The court held that the cause of action in an enforcement suit accrued when the Director's award crystallised on 1st December 2016, not on the date of the accident, so the suit ought to have been filed by 1st December 2019. Filed on 22nd February 2024, more than seven years late, it was statute barred. The court applied Ng'ang'a v County Government of Nakuru, where a similar enforcement application filed beyond three years was held time-barred with no legal provision for extension of time. The court also held, on its own motion, that limitation is a jurisdictional question it could raise suo moto, relying on David Mwangi Maina and Monata Matiko Chonchorio. The Claimant's arguments that declaratory orders fall outside section 89, and the reliance on Joash Shisia Cheto, were rejected as baseless and irrelevant respectively. The suit was struck out with costs to the Respondent. Judgment was delivered online on 27th March 2025 by B. O. M. Manani, J, with the parties' consent waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Limitation under section 89 of the Employment Act applied to enforcement of a Director's award

Holding

The suit to enforce the award rendered on 1st December 2016, filed on 22nd February 2024, was filed outside the three-year period and is statute barred.

Reasoning

Section 89 of the Employment Act excludes the Limitation of Actions Act for claims arising from a contract of service and requires such claims to be filed within three years. The claim sought enforcement of the Director's award, so the cause of action accrued when the award crystallised on 1st December 2016, not on the date of the accident. Filed on 22nd February 2024, the suit was over seven years late and could not be entertained.

p. 2
02

Holding

The court rejected the Claimant's contention that a suit for declaratory orders falls outside section 89, finding no basis advanced for it.

Reasoning

Counsel for the Claimant argued that because the suit sought declaratory orders it was not governed by section 89 of the Employment Act, but offered no legal basis for that proposition. The court gave it no weight. The Claimant's cited authority, Joash Shisia Cheto v Thepot Patrick Charles, did not consider limitation and was therefore irrelevant to the preliminary objection.

p. 3

Legal principles established

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  • A claim to enforce a Director's award under the Work Injury Benefits Act arises from a contract of service and must be filed within three years of the award under section 89 of the Employment Act; there is no legal provision extending that time.
  • Limitation of actions is a jurisdictional question which the court may raise suo moto even where not framed that way by a party.

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 89
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Work Injury Benefits Actgeneral (Director's award)
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Ng'ang'a v County Government of Nakuru
    (Miscellaneous Civil Application E007 of 2022) [2023] KEELRC 789 (KLR) (29 March 2023) (Ruling)
  • David Mwangi Maina v Simon Sana Kolii & another
    [2018] eKLR
  • Monata Matiko Chonchorio v John Marwa Chabaro
    [2021] eKLR
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims; suit governed by section 89 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, "Mutunga v African Express Airways Limited (Employment and Labour Relations Cause E121 of 2024) [2025] KEELRC 951 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/951/eng@2025-03-27

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