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ELRCStruck Out· [2025] KEELRC 1267 (KLR)

Kigamba v Mount Kenya University (Miscellaneous Civil Application E001 of 2025) [2025] KEELRC 1267 (KLR)

Employment and Labour Relations Court
30 April 2025
BMB. O. M. Manani
1,408 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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A Kenyan court cannot rescue a claim filed too late — employment claims filed beyond three years are dead and cannot even be transferred to another court.

What this practically means

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Executive summary

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The Applicant, a former employee of the Respondent whose employment ended in 2017, claimed terminal dues of approximately Ksh. 2,229,500.00. After clearing and returning company property, he did not receive the dues and filed Thika Chief Magistrate's Court Civil Case No. 194 of 2024 in 2024 to compel payment. Realising the Magistrate's Court lacked jurisdiction, he moved the Employment and Labour Relations Court seeking transfer of the suit to itself. The Respondent objected through a preliminary objection, contending that under section 89 of the Employment Act the claim, accruing in 2017, had to be filed within three years, and that the 2024 suit was therefore time barred and a nullity which neither court could entertain. The court framed a single issue: whether it had jurisdiction to transfer the suit to itself. It held that limitation of actions obliterates jurisdiction, and that while the ELRC can transfer valid suits, it cannot transfer an incompetent suit because a nullity cannot be transferred and moulded into something valid. Relying on Equity Bank Ltd v Bruce Mutie Mutuku and Abraham Mwangi Wamigwi, the court found the Magistrate's Court suit a nullity for non-compliance with section 89 and therefore lacking existence in law. The preliminary objection succeeded, the application was struck out, and each party was ordered to bear its own costs. The judgment was delivered online on 30th April 2025 with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the ELRC has jurisdiction to transfer to itself a suit filed outside the limitation period under section 89 of the Employment Act

Holding

The court lacks jurisdiction to transfer the suit because a time-barred suit is a nullity and cannot be transferred

Reasoning

Section 89 of the Employment Act requires contract-of-service claims to be filed within three years of accrual. A suit filed outside that period is time barred, and limitation goes to jurisdiction. Following Equity Bank Ltd v Bruce Mutie Mutuku and Abraham Mwangi Wamigwi, an incompetent suit is a nullity and cannot be transferred under section 18 of the Civil Procedure Act, since courts can only transfer a cause whose existence is recognized by law.

p. 3

Legal principles established

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  • Limitation of actions obliterates a court's jurisdiction to entertain a claim filed outside statutory timelines
  • A court can only transfer a valid suit; it cannot transfer an invalid or incompetent suit since such a suit is a nullity

Court orders

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  1. 1.The Respondent's preliminary objection succeeds and the application is struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 89
  • Limitation of Actions Actsection 4(1)
  • Civil Procedure Actsection 18
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (3)

  • Mohamed v Walker Kontos Advocates & another
    (Miscellaneous Application E008 of 2020) [2022] KEHC 16797 (KLR) (Civ) (22 December 2022) (Ruling)
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel
    [2016] eKLR
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; transfer powers considered under section 18 of the Civil Procedure Act and 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, "Kigamba v Mount Kenya University (Miscellaneous Civil Application E001 of 2025) [2025] KEELRC 1267 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1267/eng@2025-04-30

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