[2013] KEELRC 209 (KLR)
The court held that since the cause of action arose before the Employment Act 2007, the applicable limitation period was six years under Section 4 of the Limitation of Actions Act. The claimants had until February 2012 to file their claim, but they filed in June 2013, over a year late. Even if Section 90 of the...
Source-derived case information.
- Citation
- [2013] KEELRC 209 (KLR)
- Parties
- Claimant: Allan Mwasoke Checha & Others; Respondent: M.J. Clerk Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 140 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- suit struck out as time-barred
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Employment Contracts, Jurisdiction, Statutory Bar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Mwasoke Checha & Others
Claimant
M.J. Clerk Ltd
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the suit was filed out of time under the applicable statutory limitation period.
- 2 Whether Section 90 of the Employment Act 2007 or Section 4 of the Limitation of Actions Act applies to the claim.
- 3 Whether the court has jurisdiction to hear a suit filed outside the limitation period.
Ratio Decidendi
The court held that since the cause of action arose before the Employment Act 2007, the applicable limitation period was six years under Section 4 of the Limitation of Actions Act. The claimants had until February 2012 to file their claim, but they filed in June 2013, over a year late. Even if Section 90 of the Employment Act 2007 applied, the suit would still be out of time. The statutory limitation period is not extendable, and filing outside this period renders the suit incompetent and deprives the court of jurisdiction. Therefore, the suit was struck out as being time-barred.
Court Disposition
suit struck out as time-barred
Orders
- The suit is struck out for being filed out of time.
- No orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 140 OF 2013
ALLAN MWASOKE CHECHA & OTHERS ….......................CLAIMANT
VERSUS
M.J. CLERK LTD …...............................................................RESPONDENT
R U L I N G
This is a ruling on a Preliminary Objection (P.O.) filed on 3/7/2013 by the respondent challenging the claimants suit for being filed out of time.
The P.O. came up for hearing on 17/7/2013 when the parties agreed to dispose it of by way of written submissions. As at the time when the court went to write the ruling only the respondent had filed her submissions. It would appear that the Preliminary Objection was not opposed by the claimants.
The gravamen of the P.O. Is that the suit herein was filed out of time in view of Section 90 of the Employment Act 2007 which limits the period for employment claims to 3 years. That such statutory period is not extendable. In the present case the cause of action arose in February 2006 and according to the respondent the claimants had upto February 2009 to bring this suit.
The court disagrees with that view because the cause of action arose before the 2007 Employment Act, hence the claimant had the right to sue upto a period of 6 years under Section 4 of the Limitations of Actions Act Cap 22 Laws of Kenya. That means that the claimant had upto February 2012 to file their claim.
However they waited upto June 2013 to bring the suit which was over one year late. Whichever way you look at it, whether under Section 90 of the Employment Act 2007 or Section 4 of the Limitations of Actions Act, the suit was filed out of time.
It follows therefore that the suit is declared incompetent and bad in law. That incompetence due to statutory limitations goes to negate the courts jurisdiction over the suit. Consequently the suit is struck out with no orders as to costs.
Signed, dated and delivered this 26th August 2013
ONESMUS MAKAU
JUDGE