Rasesh Shah v Anil D. Shah t/a Amratlal Hardware Stores

Nairobi for murder of his father. On 9 th December 2009, he was sentenced to death under Section 204 of the Penal Code and placed on death row. 3. On 19th April 2019, the Claimant's case came before the High Court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] KESC 2 (KLR) and the earlier sentence was reduced to 20 years' imprisonment less remission running from the date of plea. 4. On 10th December 2021, he was released from prison upon completion of his sentenced term and began to pursue the respondent for payment of his employment benefits which accrued on 31st December 2006 when he left employment. 5. On 10th March 2026, the Claimant filed the present suit seeking annual leave pay for 4.67 years at 21 days per year equaling KShs. 163,366 and service gratuity for 4 completed years at 15 days per year equling KShs. 100,020. The total principal sum claimed was KShs. 263,386. RULING IN ELRC CAUSE NO. E237 OF 2026. 2

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6. On 9th April 2026, the Respondent filed the Preliminary Objection dated even date, urging the court to strike out the suit on the following ground: a) The Employment Act ,2007, has no retrospective application; b) The claims made by the claimant are time-barred by Limitation of Actions Act; and c) No leave was obtained from this Honourable Court for extension of limitation periods under the Limitation of Action Act. 7. On 27th April 2026, the Claimant filed his Replying Affidavit opposing the Preliminary Objection and thereafter both sides filed written Submissions to dispose of the Preliminary Objection. 8. Having considered the pleadings, Preliminary Objection, the claimant’s Affidavits and the submissions the main issue for determination is whether the suit herein is statute barred. Analysis RULING IN ELRC CAUSE NO. E237 OF 2026. 3

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9. The claimant’s suit is for terminal dues that accrued on 31 st December 2006 when his employment by the respondent ended. There can be no doubt that the applicable law to the claim is the old Employment Act that was repealed by the Employment Act, 2007. The repealed Act did not have any provision for limitation of time and therefore the applicable law was section 4 of the Limitation of Actions Act that gave the limitation period as six months for claims based on contracts including employment contracts. 10. The Respondent contended that the Claimant's claim is timebarred by dint of Section 4(1) of the Limitation of Actions Act since it was filed on 10 th March 2026 after a period of 19 years from 31st December 2006 when the cause of action arose. He relied on several judicial precedents to fortify the Preliminary Objection to the suit. 11. The Claimant, on the other hand submitted that his rights accrued under the repealed Employment Act (Cap. 226), but Section 87 of the Employment Act, 2007 expressly saved all the rights under the repealed Act. He contended that the delay in filing the suit was due to the death sentence that RULING IN ELRC CAUSE NO. E237 OF 2026. 4

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rendered him incapable of filing suit. He further submitted that the Respondent had made a promise to him while in prison, that he would pay the dues but he later refused to honour the promise. He further submitted that this court has jurisdiction under Section 12(1)(a) of the ELRC Act, 2011 to entertain the suit. 12. I have carefully considered the arguments by the two sides and the cited authorities. In the case of Divecon v Samani (1995-1998) 1 EA P.48 the Court of Appeal held that: “…to us, the meaning of section 4(1) is clear beyond doubt. It means that no one shall have the right or power to bring, after the end of six years from the date on which a cause of action arose, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done, namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for bringing of the action. A perusal of Part III shows RULING IN ELRC CAUSE NO. E237 OF 2026. 5

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that its provision do not apply to actions based on contract.” 13. In the case of Beatrice Kahai Adagala v Postal Corporation of Kenya Civil Appeal (Application) 28 of 2014) [2015] KECA 257 (KLR)the Court of Appeal held: “Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act 2007 which we have quoted verbatim herein above, is in mandatory terms. A claim based on a contract of employment must be filed within 3 years. As this Court stated in the case of Divecon Limited v Samani [1995-1998] 1 EA 48, a decision relied upon by Radido J in Josephat Ndirangu v Henkel Chemicals limitation (EA) Limited [2013] eKLR, period is never extended in matters based on contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of RULING IN ELRC CAUSE NO. E237 OF 2026. 6

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section 27 and 28 of the Limitation of Actions Act.” 14. The above decisions are binding on me and are clear that any claim founded on a contract must be filed within the limitation period given by a statute. It is also clear that once the limitation period expires, it cannot be extended and the claim becomes stale. 15. The claimant alleged that because of the criminal process he faced after the termination of his employment, he became incapacitated and therefore time stopped running until he was released after completing his prison sentence. However, no law supports the said contention even when the civil claim and the criminal proceedings arise from the same facts. 16. In Makhoha v Multiple Ice Kenya Limited (Miscellaneous Application E015 of 2023), this Court held that, time under Section 90 of the Employment Act, 2007 does not stop running due to ongoing criminal proceedings. RULING IN ELRC CAUSE NO. E237 OF 2026. 7

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17. Having noted that the suit was filed 19 years from 31 st December 2006 when the claimant’s employment ended, I do not hesitate to hold that the suit was filed out of time and this court lacks jurisdiction to entertain it. Therefore, I uphold the preliminary objection and strike out the suit. However, I will not condemn the claimant to pay costs considering that he has spent a long time behind bars where he was not earning any income. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: In person: Claimant Muruingi for Respondent RULING IN ELRC CAUSE NO. E237 OF 2026. 8

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