Kitui Flor Mills Limited v Katiru (Appeal E264 of 2024) [2025] KEELRC 2099 (KLR)
The bottom line
#Kenya's Employment Court threw out a worker's unfair termination award because the claim was filed just one day after the three-year deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in shifting the burden of proving the employment relationship to the appellant
- 2.Whether the medical examination certificates constituted proof of employment
- 3.Whether the respondent's claims were time-barred under section 89/90 of the Employment Act
Key legal issues
#Burden of proof of employment relationship
Once the employer denied the relationship and the respondent's certificates did not name the employer, the burden lay on the respondent; but the appellant's failure to produce employment records justified the magistrate's finding that the claim was not materially challenged
The court held that a medical examination certificate is not primary proof of employment and that where the employer's name is not listed the burden shifted to the respondent. However, the appellant's witness confirmed the packaging department and casual engagements, and the appellant, as the custodian of employment records under sections 10(7) and 74 of the Employment Act, failed to produce them, supporting the trial court's approach on proof of employment.
Limitation under section 89 of the Employment Act
The claim filed on 28 November 2023 in respect of termination on 27 November 2020 was outside the 3-year limitation period and time-barred
Employment ceased on 27 November 2020 by oral notice; time started running then. Filing on 28 November 2023 exceeded the 3-year period fixed by section 89, which is mandatory and incapable of enlargement, following Attorney General v Andrew Maina Githinji, Beatrice Kahai Adagala and David Ngugi Waweru. Consequently the trial court lacked jurisdiction.
Raising a point of law on limitation on appeal
A point of law on limitation may be raised even on appeal, though it ought to have been raised at the earliest opportunity before the trial court
The court observed that limitation objections should be raised before trial proceedings continue to avoid wasting judicial time, but confirmed that an appellate court may still address an objection on a point of law arising from the pleadings.
Legal principles established
#- Section 89 of the Employment Act is mandatory; a claim based on a contract of employment must be filed within 3 years of cessation of employment and time cannot be enlarged
- A medical examination certificate is not a primary record of proof of employment
- Time in unfair termination claims begins to run on the date employment ceased
Court orders
#- 1.The judgment of the trial court delivered on 5 December 2024 is set aside in its entirety
- 2.Each party is to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E763 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court (ELRC) judgment
Relief refused
#Respondent's claim for damages and compensation awarded by the trial court
The claim was filed outside the limitation period under section 89 of the Employment Act, depriving the trial court of jurisdiction
Costs
Each party is to bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The filing of the claim before the trial court was outside the limitation period; the trial court lacked the requisite jurisdiction to hear the matter and make its determination.
The judgment of the trial court is hereby set aside in its entirety. Each party is to bear its costs.
Section 89 of the Act is couched in mandatory terms. The time provided therein is not elastic and, hence, incapable of enlargement.
Whereas the employer must submit work records under an employment Claim in terms of Section 10(7) and 74 of the Employment Act, a medical examination certificate is not a primary record of proof of employment.
Issues in the judgment
#The judgment states a proper calculation of 3 years from 27 November 2020 'would result in 26 in 2020', an internally inconsistent date reference
The judgment cites both section 90 and section 89 of the Employment Act for the limitation period without reconciling the two
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitui Flor Mills Limited v Katiru (Appeal E264 of 2024) [2025] KEELRC 2099 (KLR)", Case Analysis (2025). Mombasa CMELRC Appeal arising from Mombasa CMELRC No. E763 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2099/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.