Teachers Service Commission v Macharia (Employment and Labour Relations Appeal E345 of 2024) [2025] KEELRC 2152 (KLR)
The bottom line
#Kenya's Employment Court confirmed there is no extension of the three-year deadline for suing employers over contract-based claims, no matter the reason for delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to extend the limitation period in employment claims under section 89 (then 90) of the Employment Act
It does not; the provision is mandatory and the trial court erred in extending time for a contract-based claim
The court relied on Court of Appeal precedent (Rift Valley Railways; Kenya Airports Authority v Kisongochi; Divecon v Samani) holding that section 90 of the Employment Act is in mandatory terms, that limitation periods in contract claims are never extended, and that sections 27 and 28 of the Limitation of Actions Act apply only to tort claims. The claimant's cause of action arose in 2015 and expired in 2018; illness is an unfortunate excuse but the law admits no exception.
Whether limitation is a jurisdictional issue that may be raised for the first time on appeal
Yes; limitation goes to jurisdiction and may be raised at any stage
Applying Owners of the Motor Vessel 'Lillian S' v Caltex Oil, the court held that where a statute fixes the limitation period, adjudicating a time-barred claim would be acting without jurisdiction. Because jurisdiction is everything, the point may be raised at any stage, and the failure to file a defence before the trial court did not waive the right to challenge the order on appeal.
Whether non-participation in the trial proceedings amounted to waiver of the right to challenge the ruling
No; failure to file a response did not waive the right to appeal
The respondent argued the appellant waived its rights by not responding or appearing and by not seeking to set aside the ex-parte ruling. The court held limitation is a jurisdictional question going to the root of the cause, which a court must satisfy itself of, and non-filing of a defence did not waive the right to appeal the extension of time.
Legal principles established
#- Limitation under section 89 (formerly 90) of the Employment Act is mandatory; there are no exceptions to the three-year period save continuing injury, and time in contract claims cannot be extended
- Limitation of time is a jurisdictional issue which can be raised at any stage of proceedings and does not require the court's adjudication of a time-barred claim
- Failure to file a response to an application does not amount to waiver of the right to appeal an order extending time
Court orders
#- 1.The appeal is allowed
- 2.The Ruling and Order of Hon. G. Omodho (PM) delivered on 12th July 2023 in Nairobi Misc Civil Application No. E588 of 2023 is set aside
- 3.Substituted with an Order that the application by way of Exparte Originating Summons dated 25th April 2023 is dismissed
- 4.No order as to costs in the application and in this appeal
- 5.The file is marked as closed
- On appeal from
- Magistrates Court (ELRC) at Nairobi
- Nairobi Misc Civil Application No. E588 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court ruling (statutory right of appeal; Employment Act and Civil Procedure Act invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Macharia (Employment and Labour Relations Appeal E345 of 2024) [2025] KEELRC 2152 (KLR)", Case Analysis (2025). Nairobi ELRC Appeal (Misc. Civil Application No. E588 of 2023 appealed from). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2152/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.