Josephat Kipleting Kosgei v Sashoo Logistics Limited

Elrc Appeal No. E050 Of 2026 periods between 21st December and 13th January in each of the intervening years were to be left out of the reckoning by virtue of Order 50 rule 4 of the Civil Procedure Rules, 2010, and that, once they were left out, his claim was in time. 2. The learned trial magistrate was not persuaded. By a Ruling delivered on 19th February 2026 she upheld the objection and struck out the suit. That is the decision appealed against. 3. The appeal turns on one question: whether Order 50 rule 4 of the Civil Procedure Rules, which suspends the running of time over the Christmas vacation, has any application to the limitation period which Parliament has prescribed by section 90 of the Employment Act. B. BACKGROUND (a) The claim 4. By a Memorandum of Claim dated 5th March 2025, the Appellant pleaded that he was employed by the Respondent 2

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Elrc Appeal No. E050 Of 2026 as a long-distance truck driver on 2nd March 2015 and that he served continuously until 30th April 2022. On that day, he says, the truck he was driving broke down near Mazeras; the Respondent’s manager blamed him for the breakdown, ordered him to leave and told him never to return. He pleaded that he was dismissed without notice, without a hearing and without a valid reason, and he claimed a total of Kshs. 753,000/= under various heads, together with costs and interest. 5. It is common ground that the Memorandum of Claim, though dated 5th March 2025, was filed on 15th May 2025. (b) The response and the preliminary objection 6. The Respondent filed a Response to the Memorandum of Claim dated 6th August 2025. In it, it denied the claim, pleaded that the Appellant had served on a fixed-term contract and had been disciplined for absenteeism, and raised, at paragraphs 10 to 12, the plea that the claim was statute-barred under section 90 of the Employment Act. 3

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Elrc Appeal No. E050 Of 2026 7. On the same date the Respondent filed a Notice of Preliminary Objection. It contended that the cause of action, as pleaded, arose on or about 30th April 2022; that the suit was filed on 15th May 2025, more than three years later; and that the court therefore lacked jurisdiction to entertain the claim, which ought to be struck out with costs. 8. The objection was canvassed by way of written submissions. The Appellant’s answer rested entirely on Order 50 rule 4 of the Civil Procedure Rules. In its supplementary submissions dated 17th December 2025, the Respondent replied that section 90 imposes a substantive limitation which goes to jurisdiction; that the jurisdiction of the court in employment disputes derives from the Constitution and from statute, not from the Civil Procedure Act and Rules; that a procedural rule cannot be imported to extend, suspend or vary a statutory timeline; and that, in any event, Order 50 rule 4 governs the computation of time for procedural acts in proceedings already instituted, not the period within which a cause of action must be brought. 4

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Elrc Appeal No. E050 Of 2026 (c) The Ruling 9. The learned trial magistrate first satisfied herself that the objection raised a pure point of law which, if upheld, would dispose of the suit. She then turned to its merits. The material part of her reasoning, as it appears in the record, reads: “The Claimant relied on Rule 4 of Order 50 which defines a month as a calendar month. Rule 2 provides for periods of six days or less the weekends and public holidays are not included. Rule 3 excludes Sundays. The exclusions in Rule 4 do not apply to filing of suits. Had the last day of filing suit fallen on Sunday or public holiday then the suit would have been filed the next working day. Rule 4 applies to limited time for doing something. My understanding is that a month under Rule 4 Order 50 means a calendar month then it follows that a year means a calendar year. In the present case, the claim is supposed to be filed within 3 years. It cannot be said that the dates 5

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Elrc Appeal No. E050 Of 2026 under Rule 4 for the entire 3 years are not computed. The claim ought to have been filed by the 30th April 2025 which was a Wednesday. Therefore, there is no justification for the late filing.” 10. She accordingly upheld the preliminary objection and struck out the suit. C. THE APPEAL 11. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 7th March 2026. It raises three grounds, namely that the learned magistrate erred in law and in fact: (i) by finding that Order 50 rule 4 of the Civil Procedure Rules does not apply to the filing of suits; (ii) by interpreting a year to mean a calendar year and omitting the provision of Order 50 rule 4 on when time does not run; and (iii) by failing to consider the Appellant’s submissions and striking out the suit. 6

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Elrc Appeal No. E050 Of 2026 12. He asks that the appeal be allowed, that the Ruling be set aside, that the suit be reinstated, and that he be awarded the costs of the appeal and of the trial court. 13. The appeal was canvassed by way of written submissions. 7

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Elrc Appeal No. E050 Of 2026 (a) The Appellant’s submissions 14. The Appellant submits that his suit was filed within the three years allowed because, in every year, the period between 21st December and 13th January of the following year is omitted from any computation of time for the filing of any pleading. He sets out Order 50 rule 4 and submits that the periods from 21st December 2022 to 13th January 2023, 21st December 2023 to 13th January 2024, and 21st December 2024 to 13th January 2025, amounting in all to seventy-two days, ought to be left out of the computation because, in his words, time had stopped running. On that footing, he says, the cause of action having arisen on 30th April 2022, he had until 12th July 2025 to institute his claim. He submits that the learned magistrate was wrong to hold that Order 50 rule 4 does not apply, that the preliminary objection lacked merit, and that it was only meant to delay the suit. (b) The Respondent’s submissions 8

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Elrc Appeal No. E050 Of 2026 15. The Respondent reminds the court of its duty on a first appeal, citing Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] KECA 208 (KLR). It submits that before the trial court the Appellant relied solely on Order 50 rule 4; that the learned magistrate considered that argument and correctly rejected it; and that her interpretation conforms to section 57 of the Interpretation and General Provisions Act on the computation of time. 16. Relying on the decision of the Supreme Court in Kenya Airports Authority v Otieno Ragot & Co. Advocates (Petition No. E011 of 2023), it submits that statutory provisions are to be given their plain, ordinary and grammatical meaning. Relying further on the principle restated in Abok James Odera (supra), that where the Constitution or an Act of Parliament prescribes a procedure for the redress of a grievance that procedure must be strictly followed, it submits that the limitation in section 90 cannot be supplanted or ousted by Order 50 of the Civil Procedure 9

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Elrc Appeal No. E050 Of 2026 Rules. Finally, it submits that section 90 stands alone and is unqualified; had Parliament intended it to be read subject to the Civil Procedure Rules, nothing would have stopped it from saying so. It urges that the appeal be dismissed with costs. D. ANALYSIS AND DETERMINATION (a) The duty of the court 17. This is a first appeal. The court is under a duty to re-consider and re-evaluate the material that was before the trial court and to reach its own conclusions, bearing in mind that it did not see or hear the witnesses; see Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Abok James Odera (supra). No evidence was taken here. The decision appealed against was made on a preliminary objection, on facts that are not in dispute, and the appeal raises only a question of law. The court is therefore as well placed as the trial court to answer it. 10

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Elrc Appeal No. E050 Of 2026 18. Having considered the record and the submissions of both sides, I find that the following issues arise for determination: (i) Whether Order 50 rule 4 of the Civil Procedure Rules applies to the computation of the limitation period prescribed by section 90 of the Employment Act; (ii) Whether, properly computed, the Appellant’s claim was time-barred; (iii) Whether the learned magistrate failed to consider the Appellant’s submissions; and (iv) What orders should issue, including on costs. 19. Grounds (i) and (ii) of the Memorandum of Appeal raise the same complaint from two directions and I shall consider them together under the first two issues. (b) The nature of the objection 20. Although no ground of appeal takes issue with it, it is right to say at once that the objection was a proper preliminary objection within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 11

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Elrc Appeal No. E050 Of 2026 696. The date on which the Appellant says his employment was terminated, 30th April 2022, is his own pleading. The date on which his claim was filed, 15th May 2025, is not contested. What was left was a pure question of law: whether, on those facts, the claim was brought within the time allowed by section 90. 21. That question goes to jurisdiction. A limitation period fixed by statute is not a mere technicality that the court may overlook in the interests of substantive justice. In Iga v Makerere University [1972] EA 65, the court held that a plaint barred by limitation is barred by law, and that a court has no power to grant relief on such a claim unless the party brings himself within a ground of exemption recognised by the law. In Divecon Ltd v Samani [1995–1998] 1 EA 48, the Court of Appeal held that no court has power to extend time for the bringing of a claim where the statute makes no provision for extension. And as Nyarangi JA famously put it in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything; without it a court 12

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Elrc Appeal No. E050 Of 2026 has no power to make one more step, and must down its tools. (c) Section 90 of the Employment Act 22. Section 90 of the Employment Act provides: “Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of or in the case of a continuing injury or damage within twelve months next after the cessation thereof.” 23. Three features of the section are significant for present purposes. First, its language is prohibitive and mandatory: no action “shall lie or be instituted” unless it is commenced within the prescribed time. Secondly, it is self-contained. Parliament expressly displaced the general limitation in section 4(1) of the Limitation of Actions Act and substituted a 13

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Elrc Appeal No. E050 Of 2026 period of its own. Thirdly, the only qualification Parliament saw fit to make is the one for continuing injury or damage, for which the period is twelve months next after cessation. A termination of employment is not a continuing injury; time runs from the date of the termination itself; see Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR). Nothing in the section suspends the running of time for any part of the year, or makes the period subject to the Civil Procedure Rules. (d) Whether Order 50 rule 4 applies to the limitation period under section 90 24. The Appellant’s case stands or falls on the wording of Order 50 rule 4, so it is necessary to set the rule out in full. It reads, verbatim: “4. Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted 14

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Elrc Appeal No. E050 Of 2026 from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.” 25. Read as a whole, and according to the plain and ordinary meaning of its words, the rule speaks for itself on the question of its own reach. Four aspects of its text, taken together, put the matter beyond doubt. 26. First, and decisively, the rule defines the time to which it applies. The period between 21st December and 13th January is to be omitted from the computation of time “whether under these Rules or any order of the court”. Those words are words of limitation. The rule operates on time limits fixed by the Civil Procedure Rules themselves, and on time limits fixed by an order of the court made in a proceeding. The period within which an employment claim 15

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Elrc Appeal No. E050 Of 2026 must be commenced is neither. It is not fixed by the Rules, and it is not fixed by any order of the court. It is fixed by section 90 of the Employment Act, an Act of Parliament. A limitation period fixed by statute falls outside the class of time limits to which the rule, by its own terms, applies. 27. Secondly, the acts in respect of which time is suspended are “the amending, delivering or filing of any pleading or the doing of any other act”. Amending a pleading, delivering a pleading and filing a pleading in answer to another are steps taken in the course of proceedings that are already on foot. The general words “the doing of any other act” take their colour from the specific words that precede them and refer to acts of the same kind, that is, procedural steps in pending litigation. They do not reach out to the substantive question whether a cause of action may be brought at all. 28. Thirdly, the rule may be displaced where “otherwise directed by a judge for reasons to be recorded in writing”. A power of 16

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Elrc Appeal No. E050 Of 2026 the court to direct that time shall run over the vacation, case by case, is a case-management power exercisable within a proceeding. It is incompatible with the notion that the rule governs a statutory period of limitation which runs before any proceeding exists and which no court has power to vary. 29. Fourthly, the proviso excludes from the rule any application in respect of a temporary injunction. An application for a temporary injunction is an interlocutory step in a pending suit. That Rules Committee found it necessary to carve such an application out of the rule confirms that the rule was concerned with steps in litigation, not with the time within which litigation is to be commenced. 30. It follows that Order 50 rule 4 is a rule for the computation of time limits that are created by the Civil Procedure Rules and by orders of the court made under them. It does not apply to matters outside the Rules and orders given under them. In particular, it has no application to the limitation period 17

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Elrc Appeal No. E050 Of 2026 prescribed by section 90 of the Employment Act. The question posed at the outset of this judgment is therefore answered in the negative. (e) The computational formula under the Rules and statutory limitation 31. The point may be put another way. Order 50 of the Civil Procedure Rules contains a set of rules for the computation of time. Rule 1 provides that a month means a calendar month; rule 2 excludes Saturdays, Sundays and public holidays from short periods; rule 3 deals with time that expires on a day when the court offices are closed; and rule 4 excludes the Christmas vacation. These provisions together form the computational formula under the Rules. Like every other provision of the Rules, the formula serves the Rules: it determines how the time limits the Rules create, or the court fixes under them, are to be reckoned. 32. Where the time limit is fixed by a written law, Parliament has provided a separate formula. Section 57 of the Interpretation and General Provisions Act provides: 18

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Elrc Appeal No. E050 Of 2026 “In computing time for the purposes of a written law, unless the contrary intention appears— (a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; (b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day; (c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; 19

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Elrc Appeal No. E050 Of 2026 (d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.” 33. The Employment Act is a written law. The computation of the three years in section 90 is therefore governed by section 57 of the Interpretation and General Provisions Act, and not by Order 50 of the Civil Procedure Rules. Section 57 excludes the day of the event from the reckoning, and it extends a period whose last day falls on an excluded day to the next working day. It contains no provision that suspends the running of time over the Christmas vacation, or over any other part of the year. Parliament, having legislated for the computation of statutory time, did not include the exclusion on which the Appellant relies. The court cannot write it in. 34. This is the sense in which the learned magistrate observed that, had the last day for filing fallen on a Sunday or a public holiday, the claim could have been filed on the next working 20

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Elrc Appeal No. E050 Of 2026 day. That is precisely the extent of the relief which the law affords in the computation of a statutory period, and it is afforded by section 57(b), not by Order 50 rule 4. (f) The hierarchy of norms 35. There is a more fundamental reason why the Appellant’s argument cannot succeed. It invites the court to allow a rule of procedure to enlarge a period of limitation laid down by an Act of Parliament. 36. The Civil Procedure Rules are subsidiary legislation, made by the Rules Committee under section 81 of the Civil Procedure Act. They are subordinate both to the Constitution and to Acts of Parliament. Section 31(b) of the Interpretation and General Provisions Act provides, in terms, that “no subsidiary legislation shall be inconsistent with the provisions of an Act”. Section 90 of the Employment Act is a substantive provision of an Act of Parliament. It defines the life of a cause of action and, with it, the jurisdiction of the court to entertain the claim. Rules of procedure, on the other hand, regulate the manner in which a court that has jurisdiction 21

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Elrc Appeal No. E050 Of 2026 exercises it. They are the handmaiden of the substantive law, not its master. 37. To read Order 50 rule 4 in the manner the Appellant urges would be to allow a rule made by the Rules Committee to add seventy-two days to the three years that Parliament prescribed, and thereby to amend section 90 by subsidiary legislation. That is not permissible. Where a rule of procedure and a substantive statute speak to the same matter, the statute prevails. Here, however, there is not even a conflict to resolve: on its true construction, as I have found, rule 4 does not purport to speak to statutory limitation at all. 38. I would add that the Civil Procedure Rules do not, of their own force, govern proceedings in employment and labour relations disputes. The jurisdiction exercised by the trial court in such disputes is conferred by Article 162(2)(a) of the Constitution, the Employment and Labour Relations Court Act and the Employment Act. Recourse to the Civil Procedure 22

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Elrc Appeal No. E050 Of 2026 Rules is had only to fill a gap where the procedure applicable to the court is silent. On the question of when an employment claim must be commenced, the governing statute is not silent. Section 90 speaks to it directly and exhaustively. There is therefore no gap for Order 50 rule 4 to fill. The Respondent was right to submit that, had Parliament intended section 90 to be read subject to the Civil Procedure Rules, it would have said so. (g) Whether “year” means a calendar year 39. The second ground of appeal faults the learned magistrate for interpreting “year” to mean a calendar year. In my view, the learned magistrate was right. 40. Where a statute prescribes a period in years, then, unless the statute expressly provides otherwise, a year means a calendar year. That is the effect of section 3(1) of the Interpretation and General Provisions Act, which applies to “every other written law” except where something in the subject or context is inconsistent with that construction, or where the law expressly provides otherwise. Section 3(1) 23

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Elrc Appeal No. E050 Of 2026 defines “month” to mean a calendar month, and “year” to mean a year reckoned according to the British calendar. A year reckoned according to the calendar is a calendar year, and it is reckoned continuously, from a given date to the corresponding date in the following year. The Civil Procedure Rules are to the same effect where months are concerned: Order 50 rule 1 provides that a month means a calendar month. Nothing in the subject or context of section 90 of the Employment Act suggests a different meaning, and the section does not provide otherwise. 41. It follows that “three years next after the act, neglect or default complained of” in section 90 means three calendar years, reckoned continuously and without interruption from the date of the act complained of. A calendar year has no gaps in it. The Appellant’s construction, under which the three years would be three calendar years less seventy-two days, or a period of three years and seventy-two days, finds no support in the text of the statute, in the Interpretation 24

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Elrc Appeal No. E050 Of 2026 and General Provisions Act, or in any authority to which the court was referred. 42. I note that the learned magistrate attributed the definition of a month as a calendar month to rule 4 of Order 50; it is in fact found in rule 1. Nothing turns on that slip. Her conclusion, that a year means a calendar year, is correct, and it is supported by section 3(1) of the Interpretation and General Provisions Act. (h) Whether the claim was time-barred 43. Applying these principles to the undisputed facts, the Appellant pleaded that his employment was terminated on 30th April 2022. Excluding that day, as section 57(a) of the Interpretation and General Provisions Act requires, the three calendar years next after the termination expired on 30th April 2025. That day was a Wednesday. It was neither a Sunday nor a public holiday, so section 57(b) did not extend the period. 25

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Elrc Appeal No. E050 Of 2026 44. The claim was filed on 15th May 2025, fifteen days after the period had run out. The Appellant’s own submissions accept, implicitly, that the claim was out of time unless the vacation periods are excluded. I have found that they are not. The claim was therefore statute-barred under section 90 of the Employment Act when it was filed. The trial court had no jurisdiction to entertain it, and no power to extend the time. The learned magistrate was right to uphold the preliminary objection and to strike out the suit. Grounds (i) and (ii) of the appeal fail. (i) Whether the learned magistrate failed to consider the Appellant’s submissions 45. The third ground contends that the learned magistrate failed to consider the Appellant’s submissions. The record does not bear this out. The Appellant’s answer to the objection rested on a single point, Order 50 rule 4, and the passage of the Ruling reproduced at paragraph 9 above shows that the learned magistrate engaged with that very point, considered the rule, and gave reasons for holding that it did not avail him. A court is not required to rehearse every sentence of a 26

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Elrc Appeal No. E050 Of 2026 party’s submissions. It is required to consider the case put before it and to give reasons for its decision. The learned magistrate did so. This ground also fails. E. DISPOSITION 46. In the upshot, I find that Order 50 rule 4 of the Civil Procedure Rules applies only to the computation of time under those Rules and under orders of the court made in proceedings. It does not apply to the limitation period prescribed by section 90 of the Employment Act, which is computed in calendar years, without any exclusion of the Christmas vacation. The Appellant’s claim was filed out of time, and the learned trial magistrate was right to strike it out. The appeal lacks merit. 47. On costs, which are in the discretion of the court, I have taken into account that the appeal raised a question of law on which the Appellant was entitled to seek the view of this court, and that the Appellant’s suit has ended without any hearing of its merits. In the circumstances, I consider it just that each party bears its own costs of the appeal. 27

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Elrc Appeal No. E050 Of 2026 48. Accordingly, I make the following orders: (a) The appeal is dismissed. (b) The Ruling of the learned trial magistrate delivered on 19th February 2026 in Mombasa CMELRC No. E325 of 2025 is upheld. (c) Each party shall bear its own costs of this appeal. Dated, Signed and Delivered at Mombasa this 30th day of September 2026 OCHARO KEBIRA, JUDGE 28

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