https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1296

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E192 OF 2024** **BANDARI WISE LOGISTICS LIMITED APPELLANT** *VERSUS* **BENJAMIN MUSILI MWANGANGI RESPONDENT** **[Being an appeal from the judgment of Hon. E Kadima delivered on 23 August 2024 in Mombasa CMELRC No. E379 of 2021]** **JUDGMENT** The appeal arises from the judgment delivered on 23 August 2024 in Mombasa CMELRC No. E379 of 2021. The appellant seeks that the judgment be set aside and the respondent's claim be dismissed with costs. The appeal is that the learned erred in law and fact in failing to find that the analysis of the evidence before it and the appellant’s objections that the entire claim was barred by statute by dint of section 90 of the Employment Act since the 3-year period within which to sue had lapsed. The court thereby reached the wrong conclusion by allowing the claim on the merits. Despite the learned magistrate's finding that the respondent should have filed his claim by 9 May 2021, the claim was filed on 9 June 2021, and the court entertained it. Other grounds of appeal are that the trial court lacked the requisite jurisdiction to hear and determine the respondent's claim for being time-barred, and that the appeal should be allowed. The background of the appeal is a claim that was filed by the respondent before the trial court. His case was that he was employed by the appellant as a driver on 5 December 2013. On 27 April 2020, the appellant terminated his employment without due process and in contravention of Articles 47 and 41 of the Constitution and the Employment Act. There was no payment of the terminal dues owing at the time, and thus claimed the following: 1. One month's notice pay Ksh. 34,000. 2. 12 months' compensation Ksh. 408,000. 3. Accrued leave days for 6 years Ksh. 173,923 4. Rest days for 6 years Ksh. 861,333. 5. Public holidays for 6 years Ksh. 172,615. 6. Gratuity for 6 years Ksh. 117,692. 7. Salary arrears Ksh. 320,000. 8. Costs of the suit. In reply, the appellant denied the claims, asserting that there was no written contract between the parties, and that the documents filed in support of the claim did not originate from the appellant as the employer. The respondent had forged the director's signature, and the matter was reported to the police at Makupa Police Station under OB No. 37 of 31 July 2021 for investigation. The employment contract was terminated on 1 June 2018 due to redundancy. There were 17 other employees affected by the sports department. Following the commissioning of the SGR and the closure of the Container Freight Stations in Mombasa, the appellant began to experience a decline in its transport and logistics business. A redundancy notice was issued to all employees on 2 May 2018, and the procedures under section 40 of the Employment Act were followed during the transport department's closure. The notices of termination of employment took effect on 1 June 2018. The respondent was recalled for a piece rate contract, but he declined. In January 2020, the respondent was employed on a casual basis for a month. The appellant responded that, upon the termination of employment on 1 June 2018, the respondent filed his claim on 9 June 2021. Under section 90 of the Employment Act (the Act), the claim was time-barred, and the trial court lacked jurisdiction to hear the claim and thus made objections to the suit. The learned magistrate heard the parties and held *… The claim was filed on 9 June 2021*, way after the period of limitation had elapsed on 31 May *2021. No reason was given, i.e. the claimant sought to leave to file the suit out of time by giving reasons for the delay to avoid section 90 of the Act, which is a mandatory term in setting operations. However, the respondent should have raised a preliminary objection at the earliest time to address the issue of section 90. The variance that comes into play is a period of 9 days for the delay since the same was never canvassed, only to be raised at the submissions stage. Two years after commencement of the suit, then the respondent must have slept on their rights.* Therefore, the learned magistrate assessed the claims on the merits, finding that there was unfair and wrongful termination of employment contrary to section 45 of the Act. The following awards were issued: 1. Accrued leave days for 6 years Ksh. 176,211. 2. Salary arrears Ksh. 320,000. 3. Gratuity Ksh. 117,692. 4. Costs of the suit. On the appeal, the appellant submitted that the trial court erred in failing to find that the respondent’s suit was filed out of time. Despite acknowledging that the time to file suit had lapsed by 9 days, the court went ahead to analyse the claims without the requisite jurisdiction. This was in error since section 90 of the Act is mandatory. In response to the claim, the appellant had raised the necessary objections with regard to the suit being time-barred under section 90 of the Act. These pleadings were not addressed on the merits. Objections on points of law can be raised at any time, as held in **Owners and Masters of Motor Vessel “Joey” v Owners and Masters of the Motor Tugs “Barbara” and “Steve B” [2008[ 1 EA.** The provisions of section 90 of the Act are mandatory as held in **John Kiiru Njiiri v University of Nairobi [2021] eKLR** and **E. Torgbor v Landislaus Odongo Ojuok [2015] eKLR.** Once a jurisdictional issue has been raised, the court has a duty to address it. The appeal should be allowed, and the judgment of the trial court set aside. The respondent submitted that employment was terminated following a redundancy notice issued on 2 May 2018. It took effect on 1 June 2021. There were, however, contradictions to the effect that the redundancy notice only took effect on 31 June 2018, and other notices were issued on 2 July 2018. Having filed his claim on 9 June 2021, the respondent was in time, and section 90 of the Act did not apply to him. The respondent submitted that he was later recalled to work in January 2020. He worked until 27 April 2020. The cause of action accrued on the last day of April 2020, and the suit was therefore filed in time. The appeal lacks merit and should be dismissed with costs. **Determination** This being a first appeal, the court has a duty to review the record, reassess the findings and make a conclusion. However, take into account that the trial court had the opportunity to hear the witnesses. The main issue of the appeal is the application of section 90 [89] of the Act. Under section 89 of the Act, a cause of action accrued within 3 years from the last date of cessation as held in **Maweu v Safaricom Ltd [2025] KEELRC 1441 (KLR)**. A claim over an alleged employment dispute should be filed in court within 3 years. A continuing injury should be addressed within 12 months from the date of cessation. See **Gitatha v Teachers Service Commission [2025] KEELRC 1073 (KLR)**. Based on the pleadings, the respondent's case was that his employment was terminated by the appellant on 27 April 2020. In reply, the appellant submitted work records showing that, on 2 May 2018, notice of redundancy was issued, and employment was terminated on 1 June 2018. This affected the entire transport department, including the respondent. Later, the respondent was employed on casual terms for a month in January 2020. The notice of redundancy is not challenged. It took effect on 1 June 2018. Indeed, the respondent’s claims were premised on 6 years of work from 2013 to 2018. The fact that he worked up to 27 April 2020 and the analysis of his claims are not in tandem. The learned magistrate well addressed the facts and held that employment terminated in June 2018, and the claim was filed 9 days out of time. However, the court held that the appellant did not raise any objections to limitations. This was in error. Under paragraph 11 of the Statement of Response, the appellant raised objections to the suit as being time-barred under the application of section 90 [89] of the Act. A suit that is time-barred cannot be revived. Whether or not this is raised by the parties, the court should take judicial notice that, without jurisdiction, it cannot proceed further. See [**Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04) and [**Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2012/8/eng%402012-10-23). The rationale is that jurisdiction is everything. Without it, the court lacks the requisite mandate to assume jurisdiction. Under section 89 of the Act, a claim premised on an employment dispute must be addressed within 3 years, while a continuing injury must be addressed within 12 months. Under section 89 of the Act, the court lacks discretion to extend time. However sympathetic the court may be, time limitation under the law is mandatory as held in **Beatrice Kahai** **Adagala v Postal Corporation of Kenya [2015] eKLR**that; Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. ***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,*** ***…*** in ***Josephat Ndirangu - vs*** ***–*** ***Henkel Chemicals (EA) Limited, [2013]*** ***eKLR***, the limitation period is never extended in matters based on contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of ***Sections 27*** and ***28*** of the Limitation of Actions Act. The termination of employment on account of redundancy, which lapsed on 1 June 2018, should have been addressed by 31 May 2021. A suit filed after such a date was time-barred. The court had no discretion to entertain it. Where the respondent was re-employed in January 2020 until 27 April 2020 on casual terms, this formed a new and different employment relationship. Claims going back to 2013, if at all, ought to have been addressed within the mandatory provisions of section 89 of the Act. The claims for alleged accrued leave days should have complied with section 28(4) of the Act. Claims for rest days or public holidays were continuing injuries which should have been addressed within 12 months. In essence, the trial court moved without jurisdiction, as pleaded by the appellant, and should have addressed it before assessing the claims on the merits. **Accordingly, the appeal is with merit and is hereby allowed. Judgment in Mombasa CMELRC No. E379 of 2021 is set aside. Costs of the appeal to the** **appellant.** **Delivered in open court at Nairobi, this 18th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..