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ELRCDismissedOriginating Summons dated 29th November 2024· [2025] KEELRC 1474 (KLR)

Wachira v British American Tobacco Kenya (Employment and Labour Relations Cause E051 of 2024) [2025] KEELRC 1474 (KLR)

Employment and Labour Relations Court
16 May 2025
1,559 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 refused to let a worker sue BAT 24 years after her 2001 redundancy, confirming that expired contract claims cannot be revived.

What this practically means

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Executive summary

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The applicant, Josephine Wangui Wachira, sought leave by originating summons dated 29th November 2024 to file suit against British American Tobacco for unlawful declaration of redundancy after the expiry of the limitation period. She attributed the delay to ill health, excusable mistake and fraud by her former legal counsel, and invoked the court's discretion under Article 162(2) of the Constitution, relying on authorities including Kenya Airways Ltd v Aviation & Allied Workers Union, Edith Gichugu Koine v Stephen Njagi Thoithi and Hamam Singh v Mistri. The redundancy notice took effect on 30th April 2001. Makau J held that the applicable law was section 4(1) of the Limitation of Actions Act, since the Employment Act 2007 was not then in force, and that a contract claim barred after six years cannot be entertained or extended - the court being bound by Devecon v Samani. Section 22 (disability) could not assist because the applicant was active in office when served with the redundancy letter and thereafter delayed 15 years before instructing counsel, plus a further nine years before filing, a total of 24 years. Citing Gathoni v Kenya Co-operative Creameries Ltd and Anadet Kalia Musau, the court found the delay unreasonable and prejudicial to the respondent, and the claim stale and beyond resuscitation. The originating summons was dismissed with no costs due to its ex-parte nature.

Key legal issues

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01

Whether the court has discretion to grant leave to file suit after the limitation period has lapsed

Holding

No; where a cause of action founded on contract has become statute-barred, the court lacks jurisdiction to extend time and no discretion exists.

Reasoning

The court applied section 4(1) of the Limitation of Actions Act as it stood before the Employment Act 2007, holding that a claim founded on contract cannot be brought after six years. Relying on Devecon v Samani, the court held it was bound by the decision that no court may entertain a stale contract claim or extend time for it, leaving no discretion. The overriding objective of limitation statutes is that there be an end to litigation.

p. 3
02

Whether extension of time could be founded on disability under section 22 of the Limitation of Actions Act

Holding

No; the disability must have existed when the cause of action arose and prevented suit, which was not established.

Reasoning

Section 22 permits extension only where the person was under a disability when the right of action accrued. The applicant was active in office when served with the redundancy letter, did nothing until separation, then delayed 15 years before instructing counsel who did not file suit, and a further nine years before moving the court - a total of 24 years. Her illness therefore did not explain the delay.

p. 3

Legal principles established

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  • Once the limitation period for a cause of action founded on contract lapses, the court has no jurisdiction to entertain the action or to extend time.

Court orders

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  1. 1.The originating summons seeking leave to file suit out of time is dismissed.
  2. 2.No costs due to the ex-parte nature of the application.
Jurisdiction invoked
Article 162(2) of the Constitution

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, "Wachira v British American Tobacco Kenya (Employment and Labour Relations Cause E051 of 2024) [2025] KEELRC 1474 (KLR)", Case Analysis (2025). Originating Summons dated 29th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1474/eng@2025-05-16

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