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ELRCDismissedApplication dated 3 June 2025· [2025] KEELRC 2361 (KLR)

Koskey v Kenya Power & Lighting Co. Limited (Miscellaneous Case E016 of 2025) [2025] KEELRC 2361 (KLR)

Employment and Labour Relations Court
8 August 2025
MMM. Mbarũ
1,111 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 confirmed it cannot extend the three-year deadline for filing wrongful termination claims, so employees must sue within three years or lose the claim entirely.

What this practically means

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Executive summary

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The applicant sought leave to file suit out of time for wrongful termination of employment. He was employed by the respondent in 2006 and appointed Distribution Area Technician, Kilifi County in January 2021. After a transformer alleged stolen during transformer relocation works in April 2021, he was suspended, issued a show cause notice in June 2021, subjected to a disciplinary hearing, and summarily dismissed by notice dated 9 August 2021. His appeal was dismissed on 7 February 2022. He attributed his failure to file in time to scarcity of resources, asserting he had an arguable case. The respondent, through the Replying Affidavit of Lynn Owano, opposed, contending that section 90 of the Employment Act mandatorily bars claims not filed within three years and that no extension is contemplated, the Limitation of Actions Act being excluded from employment claims. The court held that section 90 prescribes a specific three-year limitation period for actions based on breach of contract of service or arising under the Employment Act, replacing the six-year period under section 4(1) of the Limitation of Actions Act, following Maria Machocho v Total Kenya Ltd and Divecon Ltd v Samani. Applying Denis Kisang Ripko and the Kimana Girls authority, the court found it has neither statutory jurisdiction nor discretion to extend time in such claims. The three years lapsed on 7 August 2024, and the applicant's financial hardship did not excuse his failure even to report to the labour officer or file in his home county. The application dated 3 June 2025 was declined with no orders on costs.

Key legal issues

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01

Whether the court can grant leave to file suit out of time under section 90 of the Employment Act

Holding

No - the limitation period in section 90 is mandatory and admits no extension

Reasoning

Section 90 of the Employment Act amended the general limitation regime for contract claims, prescribing a specific three-year period for employment causes of action. Following Divecon Ltd v Samani, no discretion exists to extend time for actions founded on contract, and section 4 of the Limitation of Actions Act extension provisions do not apply to contract actions. Authorities confirm the ELRC lacks jurisdiction to grant such leave.

p. 2
02

Whether the applicant's financial hardship justified extension of time

Holding

No - the applicant took no steps to urge his case or report to the labour officer, and could have filed suit in his home county at reduced cost

Reasoning

Even accepting financial scarcity, the applicant could have pursued cost-free steps such as reporting to the labour officer, and the ELRC (Procedure) Rules permit filing suit in one's home county to reduce expenses. His failure to take any available steps undermined his claim of inability to file in time.

p. 3

Legal principles established

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  • Section 90 of the Employment Act fixes a mandatory three-year limitation period for actions arising out of the Act or a contract of service, excluding the general six-year period under the Limitation of Actions Act
  • The court has no statutory jurisdiction or discretion to grant leave to file suit out of time in employment claims

Court orders

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  1. 1.The application dated 3 June 2025 seeking leave to file suit out of time is declined
  2. 2.No orders on costs
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules; section 90 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, "Koskey v Kenya Power & Lighting Co. Limited (Miscellaneous Case E016 of 2025) [2025] KEELRC 2361 (KLR)", Case Analysis (2025). Application dated 3 June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2361/eng@2025-08-08

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