[2014] KEELRC 767 (KLR)
The court found that since leave to file the case out of time had already been sought and granted, the preliminary objection challenging the extension of time was without merit. Entertaining such an objection would amount to the court sitting on appeal against its own orders, which is impermissible. The court...
Source-derived case information.
- Citation
- [2014] KEELRC 767 (KLR)
- Parties
- Applicant: Barrack Musumba Oluoch; Respondent: Nyanza Sugar and Produce Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 273 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Limitation of Actions, Extension of Time, Preliminary Objection, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barrack Musumba Oluoch
Applicant
Nyanza Sugar and Produce Ltd
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant's suit is statutorily barred by limitation of actions under the Employment Act and Limitation of Actions Act.
- 2 Whether the court can entertain a preliminary objection on extension of time after leave has already been granted.
Ratio Decidendi
The court found that since leave to file the case out of time had already been sought and granted, the preliminary objection challenging the extension of time was without merit. Entertaining such an objection would amount to the court sitting on appeal against its own orders, which is impermissible. The court therefore dismissed the preliminary objection and directed that the hearing of the case proceed on its merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The hearing of the case will proceed on merit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 273 OF 2013
(BEFORE HON. LADY JUSTICE HELLEN WASILWA ON 15. 1.2014)
BARRACK MUSUMBA OLUOCH...................................CLAIMANT
VERSUS
NYANZA SUGAR AND PRODUCE LTD.............RESPONDENTS
RULING
The respondents herein Nyanza Sugar and Produce Ltd have raised a Preliminary objection seeking dismissal of claimant's claim stating that it is an abuse of the Court process and is statutorily barred. They claim that the claim was filed on 8. 11. 13 four years after his termination on 31. 10. 2009. The respondents contention is that under Section 90 of Employment Act, the Industrial Court cannot extend time of this Suit.
The claimants opposed the Preliminary objection and stated that the claim was brought in good faith after leave to file claim out of time was granted on 26. 9.13.
I have considered submissions of both Parties, I do find that indeed leave to file this case out of time was sought and granted. This was in consideration of the provision of Section 4 and 28 of Cap 22, Limitation of Actions Act. This Court having granted the orders for extension of time cannot entertain the Preliminary objection on the same issue as this is tantamount to sitting on appeal against its own orders. For that reason alone, I find the Preliminary Objection has no merit and I dismiss it accordingly. The hearing of this case will proceed on merit accordingly.
HELLEN WASILWA
JUDGE
15. 1.2014
Appearance
Onyango for respondents
Muasya for applicant
C/c- Wamache