Willis Ouma Obara v Harambee Co-operative Savings & Credit Society Limited

3. The Applicant contends that the criminal case prevented him from filing suit to challenge the lawfulness of the Respondent’s decision to terminate his contract of service. He contends that it only became possible for him to move to court regarding his employment grievances after the criminal case had come to an end. 4. The Applicant avers that by the time the criminal case came to a close, the time for filing the employment claim had lapsed. Hence his request for leave to file suit out of time. 5. The Respondent is opposed to the application. It has filed a replying affidavit dated 17th April 2026 to anchor its objection to the application. 6. The Respondent avers that the application has no statutory basis. It contends that section 89 of the Employment Act which provides for limitation of action timelines for employment disputes is couched in mandatory terms and that the period set by the provision cannot be extended once it lapses. 7. The Respondent avers that the fact that the timelines set for filing employment claims under the Employment Act cannot be enlarged has been affirmed by the Court of Appeal. As such, it (the Respondent) contends that this court cannot depart from that position. Analysis 8. The position expressed by the Respondent is correct. Section 89 (formerly section 90) of the Employment Act which sets MISCELLANEOUS APPLICATION NO. E126 OF 2026 2

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the timelines for filing suit in respect of employment matters is couched in mandatory terms and does not contemplate a situation where the court can enlarge the time for filing suit beyond what it provides. 9. Importantly, the law does not contemplate extension of time to file suit in respect of contracts out of time. This position was affirmed by the Court of Appeal in the case of Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR) where the learned Judges of the court observed on the subject as follows:‘’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 -vs- Samani [1995-1998] 1 EA P.48, a decision relied upon by Radido, J. in Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited, [2013] eKLR, the limitation period is never extended in matters based on contract.’’ 10. The above pronouncement, which I am in agreement with, is binding on this court. It leaves no doubt that the instant application seeking leave to extend time to file suit out of time is misguided. I need not re-invent the wheel on the matter. Determination MISCELLANEOUS APPLICATION NO. E126 OF 2026 3

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11. The upshot is that I arrive at the inevitable conclusion that the instant application is bad in law and is unmerited. 12. As such, it is dismissed. 13. Costs of the application are granted to the Respondent. Dated, signed and delivered on the 8th day of October, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Applicant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. MISCELLANEOUS APPLICATION NO. E126 OF 2026 4

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B. O. M MANANI MISCELLANEOUS APPLICATION NO. E126 OF 2026 5

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