Kimorna & 207 others v Kerio Valley Development Authority (Miscellaneous Application E001 of 2025) [2025] KEELRC 2777 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants' claims amount to a continuing injury exempting them from the three-year limitation period in section 90 of the Employment Act
The claims do not constitute continuing injuries; they relate to terminal dues payable upon retirement on the VER programme in 2018, and even if continuing, limitation would have lapsed 12 months after cessation
The court accepted section 90 of the Employment Act and authority holding that continuing-injury claims must be filed within 12 months of cessation. The Applicants' grievances concerned terminal benefits paid in 2018 on the VER programme. Underpayment or miscalculation of terminal dues is a one-time event; the cause of action accrued on payment. Negotiations at CAJ did not suspend or extend limitation.
Whether the alleged fraud takes the claims outside the limitation period
Fraud was not sufficiently explained; no particulars of the allegedly fraudulent acts or actors were given, so the section 26 Limitation of Actions Act exception does not apply
The Applicants asserted that the variation of their retirement benefits and denial of a tax waiver amounted to fraud discovered on 31 July 2024. The court found the averment unexplained: no actions constituting fraud were identified and no person alleged to have committed it. The claim was therefore an ordinary contractual employment claim for terminal dues within section 90.
Whether the court has discretion to grant leave to file suit out of time in employment claims
There is no such discretion in causes of action based on contract of service; limitation under section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act is absolute
Relying on Divecon v Samani and other decisions, the court held that no court may entertain an action founded on contract brought after the limitation period, nor any application to extend such time. The overriding objective and Article 159 cannot override clear statutory limitation provisions.
Legal principles established
#- Miscalculation or underpayment of terminal dues does not constitute a continuing injury; the cause of action accrues on the date of payment
- There is no discretion to extend the limitation period for actions founded on contract
Court orders
#- 1.The application dated 20th January 2025 seeking leave to file suit out of time is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Article 159 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimorna & 207 others v Kerio Valley Development Authority (Miscellaneous Application E001 of 2025) [2025] KEELRC 2777 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (application dated 20th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2777/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.