[2017] KEHC 8013 (KLR)
The court found that although Section 90 of the Employment Act, 2007 prescribes a three-year limitation period for employment claims, the applicant's claim for statutory terminal benefits constitutes a continuous injury within the meaning of the Act. As such, the claim is not statute barred. The court further held...
Source-derived case information.
- Citation
- [2017] KEHC 8013 (KLR)
- Parties
- Applicant: Ann Wanjiku Mwangi; Respondent: Faith Homes of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 20 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- Application allowed; leave granted to file suit out of time.
- Legal Topics
- Limitation Periods, Unlawful Dismissal, Extension of Time, Continuous Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Wanjiku Mwangi
Applicant
Faith Homes of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file the suit out of time.
- 2 Whether the claim is statute barred under Section 90 of the Employment Act, 2007.
- 3 Whether the claims constitute continuous injury within the meaning of the law.
Ratio Decidendi
The court found that although Section 90 of the Employment Act, 2007 prescribes a three-year limitation period for employment claims, the applicant's claim for statutory terminal benefits constitutes a continuous injury within the meaning of the Act. As such, the claim is not statute barred. The court further held that the memorandum of claim, once duly signed by the claimant, should be deemed duly filed, thereby granting the applicant leave to proceed with her claim despite the lapse of the initial limitation period. The court's decision was grounded in the interpretation that statutory terminal benefits, if proved, are mandatory for the employer to pay and fall within the exception for...
Court Disposition
Application allowed; leave granted to file suit out of time.
Orders
- The memorandum of claim, once duly signed by the claimant, shall be deemed duly filed.
- The claim is not statute barred and may proceed to hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
MISC. APPLICATION NO. 20 OF 2016
ANN WANJIKU MWANGI ……………..........………...... CLAIMANT
VERSUS
FAITH HOMES OF KENYA ………………………….RESPONDENT
Wangira Okoba for claimant/applicant
Makori Rioba for respondent
RULING
1. By an ex-parte originating summons the claimant/applicant seeks leave to file the suit out of time.
2. The applicant states that she was dismissed from employment on 11th May 2012 unlawfully and unfairly and she instructed M/s Wangira Okobe & Co. Advocates to file suit against the respondent in April 2013.
3. The suit ought to have been filed before expiry of three years which period expired on 11th May 2015 which is about 6 months out of time.
4. The applicant states that she is a poor, peasant farmer who is illiterate, sickly and indigent and had misplaced documents in support of the intended suit hence the delay. The documents were later traced and given to the advocate to file suit.
5. The Employment Act, No. 11 of 2007, under Section 90 provides
Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), 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 or in the case of continuing injury or damage within twelve months next after the cessation thereof.
6. The Act does not provide for extension of time. However, the section makes reference to the provisions of Section 4(1) of the limitation of Actions Act, Cap 22 of the Laws of Kenya which Act provides for a limitation period of 6 years for all cases based on contract.
7. From the attached memoranda of claim, the claimant seeks payment of various terminal benefits which are statutory in nature and are mandatory for the employer to pay if proved.
8. These claims in court’s view constitute continuous injury within the meaning of Section 90 of the Employment Act 2007 cited above.
9. Accordingly the claim is not statute barred. The memorandum of claim should be duly signed by the claimant and it be deemed duly filed.
Dated and delivered at Nairobi this 10th day of February 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE