[2013] KEELRC 265 (KLR)
The court held that since the claimant's employment was terminated on 27th June 2007, before the Employment Act 2007 came into force, the applicable law on limitation is the Limitation of Actions Act (Cap 22). Under Section 4(1), the claimant had six years from the date of termination to file a claim. As of the date...
Source-derived case information.
- Citation
- [2013] KEELRC 265 (KLR)
- Parties
- Applicant: Andrew Mwanjala Mwandawiro; Respondent: SDV Transami (K) Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 13 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Leave to File Out of Time, Employment Termination, Arbitration Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Andrew Mwanjala Mwandawiro
Applicant
SDV Transami (K) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the claimant requires leave of court to file a suit for wrongful termination after the lapse of time due to arbitration proceedings.
- 2 Whether the limitation period under the Limitation of Actions Act had expired as at the date of the application.
Ratio Decidendi
The court held that since the claimant's employment was terminated on 27th June 2007, before the Employment Act 2007 came into force, the applicable law on limitation is the Limitation of Actions Act (Cap 22). Under Section 4(1), the claimant had six years from the date of termination to file a claim. As of the date of the application (16th April 2013), the limitation period had not expired, and the claimant was still within time to file a claim without leave of court. Therefore, the application for leave was unnecessary and not granted. The claimant is at liberty to file a claim before 27th June 2013 without leave; after that date, leave would be required.
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is not granted.
- The claimant is at liberty to file a claim before the end of day on 27th June 2013 without leave.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Miscellaneous Application 13 of 2013 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
ANDREW MWANJALA MWANDAWIRO…………..……....…CLAIMANT/APPLICANT
VERSUS
SDV TRANSAMI (K) LTD..................................................................RESPONDENT
RULING
1. The Claimant has filed a Miscellaneous Application dated 16th April 2013. In it, the Claimant seeks leave of the Court to institute a suit out of time on account of the dispute between him and the proposed Respondent. It is premised on Order 37 Rule 6 of the Civil Procedure Rules, Section 27 and 28 of the Limitation of Actions Act and Section 3A of the Civil Procedure Act. It is supported by the Affidavit of the Claimant/Applicant.
2. Miss Ibrahim urged the Court to grant the prayers in the ex parte Originating Summons. She submits that the Claimant's contract of employment terminated on 27th June 2007. She submitted that the Contract of service had an arbitration clause and that in the course of pursuing his rights, the Claimant sought to have the matter resolved by arbitration. As this was ongoing, the time the Claimant has reckoned elapsed and the Claimant now seeks leave to file the suit.
3. She admits readily that the Claimant had filed a suit without leave and he withdrew the suit hence the current application for leave.
4. The Employment Act 2007 came into operation on 2nd June 2008. The Act replaced cap 226 which had hitherto been in force. Cap 226 made no provisions on limitation. Recourse was to the Limitation of Actions Act cap 22 of the Laws of Kenya. Section 4 of the Act provides as follows:- 4. (1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued -
(a) actions founded on contract;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.
5. The Claimant's services were allegedly terminated on 27th June 2007 this is before the coming into force of the Employment Act 2007. In the reckoning of time, even if we were to go by the reckoning under statute and not the extended period during the settling on an arbitrator, the Claimant should have initiated the cause before expiry of 6 years. That means, he should have filed a claim before 27th June 2013. The time is yet to expire. He is entitled to file a Claim without leave as limitations has not set in in terms of Section 4 of the Limitation of Actions Act.
6. I hold that the Claimant is at liberty to file a Claim before the end of day on 27th June 2013. He will need the leave of this Court to file after that date.
7. The Application for leave is not granted for the reasons above.
It is so ordered.
Dated and delivered at Nairobi this 27th day of May 2013
Hon. Mr. Justice Nzioki wa Makau
Judge
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]