[2017] KEELRC 1608 (KLR)
The court found that the claimant's cause of action, being contractual in nature, accrued in August 1996 and should have been filed by August 2002 in accordance with section 4(1) of the Limitation of Actions Act. The suit was instead filed in September 2016, making it time-barred. The court further held, following...
Source-derived case information.
- Citation
- [2017] KEELRC 1608 (KLR)
- Parties
- Claimant: Abubakar Ali; Respondent: Egerton University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 354 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection and Motion to Strike Out Reply
- Outcome
- Memorandum of claim struck out as time-barred; preliminary objection upheld.
- Judges
- MSA Makhandia
- Legal Topics
- Limitation Periods, Summary Dismissal, Jurisdiction, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abubakar Ali
Claimant
Egerton University
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection and Motion to Strike Out Reply
Legal Issues
- 1 Whether the cause was instituted outside the prescribed limitation period under section 4(1) of the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to admit a claim filed out of time for a contractual employment dispute.
- 3 Whether the claimant's motion for summary judgment can be entertained after a successful preliminary objection on limitation.
Ratio Decidendi
The court found that the claimant's cause of action, being contractual in nature, accrued in August 1996 and should have been filed by August 2002 in accordance with section 4(1) of the Limitation of Actions Act. The suit was instead filed in September 2016, making it time-barred. The court further held, following the Court of Appeal decision in Divecon v Samani, that it had no jurisdiction to admit or grant leave to file a claim out of time where limitation is prescribed by statute. Consequently, the preliminary objection was upheld and the memorandum of claim was struck out. The claimant's motion for summary judgment was rendered moot by this finding.
Court Disposition
Memorandum of claim struck out as time-barred; preliminary objection upheld.
Orders
- The memorandum of claim filed on 15 September 2016 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 354 OF 2016
ABUBAKAR ALI CLAIMANT
v
EGERTON UNIVERSITY RESPONDENT
RULING
1. There are 2 applications presented for determination in this ruling.
2. One is a motion dated 8 December 2016 by the Claimant seeking that the Reply to Memorandum of Claim be struck off and summary judgment be entered in his favour.
3. Second is a Preliminary Objection dated 16 January 2017 by the Respondent seeking that the Cause be dismissed for having been instituted outside the prescribed limitation period in terms of section 4(1) of the Limitation of Actions Act.
4. Because the objection relates to jurisdiction, the Court will determine it first and depending on the conclusion, the Claimant’s motion will be examined.
The Preliminary Objection
5. The Respondent seeks to defeat the Cause on the ground that it was statute time barred by dint of section 4(1) of the Limitation of Actions Act.
6. Section 90 of the Employment Act, 2007 was also cited but it is clearly inapplicable as it commenced on 2 June 2008, long after the cause of action had accrued.
7. In paragraph 5 of the Memorandum of Claim, it is pleaded that the Claimant served the Respondent until 20 August 1996 while in paragraph 15 the Claimant pleaded that he was informed of the summary dismissal on 30 August 1996.
8. It cannot be disputed that the cause of action advanced by the Claimant is contractual in nature and in terms of section 4(1) of the Limitation of Actions Act, it should have been commenced within 6 years, that is, latest by 29 August 2002.
9. The action was commenced on 15 September 2016, some 20 years after the cause of action accrued.
10. The cause of action therefore is time barred in line with section 4(1) of the Limitation of Actions Act, and relying on the decision of the Court of Appeal in Divecon v Samani (1995-1998) 1 EA 48, leave cannot be granted to commence or admit it out of time even if the Claimant had sought leave because the Court has no such jurisdiction.
11. The Court in the circumstances upholds the preliminary objection and strikes out the Memorandum of Claim filed in Court on 15 September 2016.
12. With the conclusion reached it would be an academic exercise to determine the Claimant’s motion dated 8 December 2016.
13. No order as to costs.
Delivered, dated and signed in Nakuru on this 24th day of March 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Mugweru instructed by Okubasu & Munene Advocates
For Respondent Mrs. Kairu instructed by Sheth & Wathigo Advocates
Court Assistants Nixon