Amollo v Mitsumi Distribution FZ Company & 40 others (Cause E041 of 2025) [2025] KEELRC 2649 (KLR)
The bottom line
#Kenya's Employment Court struck out a worker's claim filed just four years after dismissal, confirming the three-year filing deadline cannot be extended by contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Preliminary Objection was a proper preliminary objection
It met the threshold in Mukisa Biscuit as a pure point of law on jurisdiction and limitation
Applying Law JA and Sir Charles Newbold P's articulation, a preliminary objection raises a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit without ascertaining facts. Since the respondents challenged jurisdiction purely on limitation under Section 89 of the Employment Act, the objection qualified and was properly before the court for determination at the threshold.
Whether the ELRC has jurisdiction to enforce constitutional rights in a claim
Yes, but only over constitutional issues arising in the context of employment and labour relations; it did not save this suit
The court accepted claimant's submission, citing Okiya Omtata, USIU, Mugendi and the Kenya Tea Growers Supreme Court decision, that the ELRC can enforce constitutional rights and freedoms through a claim. However that jurisdiction does not displace statutory limitation under Section 89 of the Employment Act, and the claimant had not pleaded a continuing injury to bring himself within the statutory exception.
Whether the contract's restraining clause or the claimant's directorship extended the limitation period
No; statutory limitation cannot be altered by contract, and no evidence showed an employment relationship with the 6th respondent
The court found the claimant's argument that clause 9 of the employment contract extended the limitation period legally and factually baseless. Parties cannot contract out of or extend statutory limitation, nor confer jurisdiction by consent. Further, the claimant did not avail a contract of service with the 6th respondent to show he was an employee whose resignation extended the period; directors typically serve without contracts of service.
Whether a constitutional petition would have ameliorated the claimant's case
The court declined to decide, noting only that a petition alleging real violations would have been examined for evasion of limitation
The court observed that had the claimant filed a petition grounding his case on constitutional provisions with precision under Anarita Karimi Njeru, the court would have determined whether violations were real or whether the petition was a device to evade limitation, as often happens where the three-year period has lapsed. Since no petition was filed, the court went no further.
Whether the suit was filed within the limitation period
No; the suit filed on 9th June, 2025 over a 9th June, 2021 termination was statute barred
Section 89 requires employment-based civil actions within three years of the act complained of, with a 12-month window only for continuing injury after cessation. The claimant pleaded and the respondents admitted termination on 9th June, 2021. The claimant did not allege a continuing injury or that the suit was filed within 12 months of cessation, so the claim filed in June 2025 was out of time.
Legal principles established
#- A preliminary objection that challenges jurisdiction on account of limitation of time is a pure point of law and should be disposed of at the earliest opportunity
- Limitation of time in employment disputes is governed by Section 89 of the Employment Act and cannot be altered by agreement between the parties
- Parties cannot confer jurisdiction on a court or extend the limitation period by consent
- Where a suit is statute barred, the court has no jurisdiction and must down its tools
Court orders
#- 1.The claim dated 2nd June, 2025 is struck out
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (jurisdiction of the Employment and Labour Relations Court); limitation challenged under Section 89 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amollo v Mitsumi Distribution FZ Company & 40 others (Cause E041 of 2025) [2025] KEELRC 2649 (KLR)", Case Analysis (2025). Memorandum of Claim dated 2nd June, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2649/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.