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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 27th November 2024)

Ndubi v Kisii University & another (Cause E010 of 2024) [2025] KEELRC 1605 (KLR)

Employment and Labour Relations Court
28 May 2025
625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a worker's Kshs. 10 million claim because it was filed 11 months past the three-year deadline for employment cases.

What this practically means

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Executive summary

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The Claimant filed a Memorandum of Claim dated 27th November 2024 seeking, principally, declarations that he was entitled to remedies under sections 36 and 45(2) of the Employment Act and Article 41 of the Constitution, that his employment contract was non-compliant with the Employment Act, and monetary reliefs totalling Kshs. 10,221,000/-, including special damages, transportation and accommodation expenses, twelve months' salary for unfair termination, annual leave for 2018-2019, a certificate of service and interest. He alleged he was employed as a part-time lecturer at the Respondent's Kericho campus from January to December 2018, constructively dismissed in January 2019, and later issued a vague contract lacking essential terms. The Respondents neither entered appearance nor filed a defence. The Court, upon considering the claim ex parte, found that the alleged constructive dismissal occurred in January 2019, yet the claim was not filed until November 2024. Section 90 of the Employment Act requires such claims to be commenced within three years. The claim was therefore 11 months out of time, time-barred, and the failure to file within the limitation period divested the Court of jurisdiction. The suit was dismissed with no order as to costs, the leniency on costs being attributed to the Respondents' failure to enter appearance. Judgment delivered at Kisumu on 28th May 2025 by Nzioki Wa Makau, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim filed on 27th November 2024 for a constructive dismissal alleged to have occurred in January 2019 is time-barred under section 90 of the Employment Act
  2. 2.Whether the Court has jurisdiction to entertain a claim filed outside the three-year limitation period
  3. 3.Whether the Claimant is entitled to the reliefs sought under sections 36 and 45(2) of the Employment Act and Article 41 of the Constitution

Key legal issues

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01

Limitation of actions in employment claims under section 90 of the Employment Act

Holding

The claim for constructive dismissal alleged in January 2019, filed on 27th November 2024, was filed outside the three-year limitation period and was therefore time-barred.

Reasoning

Section 90 of the Employment Act bars civil actions arising out of the Act or a contract of service unless commenced within three years of the act, neglect or default complained of. The constructive dismissal allegedly occurred in January 2019, so the claim ought to have been filed by January 2024. Filing in November 2024 was 11 months late, leaving the Court without jurisdiction to entertain the claim.

p. 2

Legal principles established

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  • A claim arising out of a contract of service under the Employment Act must be commenced within three years of the act complained of; failure to file on time divests the Court of jurisdiction.

Court orders

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  1. 1.Suit dismissed for being time barred
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim arising out of a contract of service)

Relief refused

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Declaration of entitlement to remedies under sections 36 and 45(2) of the Employment Act and Article 41 of the Constitution

Claim time-barred under section 90 of the Employment Act; the limitation period expired in January 2024

p. 2

Compensation of Kshs. 10,221,000/- including special damages, Kshs. 270,000/- transportation, Kshs. 315,000/- accommodation, Kshs. 480,000/- for 12 months' salary for unfair termination, Kshs. 33,308/- annual leave, certificate of service and interest

The entire suit was dismissed as the claim was filed 11 months outside the statutory limitation period

p. 2

Costs

No order as to costs - the Court dismissed the suit with no order as to costs because the Respondents never entered appearance

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under the Employment Act such a claim is time-barred and incapable of leading to the resolution of the case in favour of the Claimant.
p. 2Effect of limitation under section 90 of the Employment Act
The failure to file suit on time divests this Court of the requisite jurisdiction to entertain the claim.
p. 2Limitation and jurisdiction
However, as the Respondents never entered appearance the Court will dismiss the suit but with no order as to costs. Suit dismissed for being time barred.
p. 2Final orders and costs

Issues in the judgment

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minor

The judgment states the suit was disposed of without either party filing submissions as directed, and the Court nonetheless proceeded to determine the claim on its merits as to limitation.

minor

The judgment describes itself as a ruling in the Disposition section though it determines and dismisses the entire suit.

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, "Ndubi v Kisii University & another (Cause E010 of 2024) [2025] KEELRC 1605 (KLR)", Case Analysis (2025). Not stated in judgment (Memorandum of Claim dated 27th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1605/eng@2025-05-28

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