[2019] KEELRC 260 (KLR)
The court held that, notwithstanding the Claimant's initiation of an internal appeal and the persuasive nature of his submissions, Section 66 of the Kenya Ports Authority Act clearly imposes a 12-month limitation period for filing claims against the KPA. The claim was filed more than three years after the date of...
Source-derived case information.
- Citation
- [2019] KEELRC 260 (KLR)
- Parties
- Claimant: Bernard Antony Kimwere; Respondent: Kenya Ports Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 158 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed as statute-barred under Section 66 of the KPA Act
- Judges
- J Rika
- Legal Topics
- Limitation Periods, Dismissal Claims, Internal Appeals, Jurisdiction, Government Corporations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Antony Kimwere
Claimant
Kenya Ports Authority
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim against Kenya Ports Authority is time-barred under Section 66 of the KPA Act.
- 2 Whether the initiation of an internal appeal affects the limitation period for filing claims against the KPA.
- 3 Whether the Employment and Labour Relations Court is bound by the Court of Appeal decision in KPA v. Cyrus Maina Njoroge.
Ratio Decidendi
The court held that, notwithstanding the Claimant's initiation of an internal appeal and the persuasive nature of his submissions, Section 66 of the Kenya Ports Authority Act clearly imposes a 12-month limitation period for filing claims against the KPA. The claim was filed more than three years after the date of dismissal, well outside the statutory period. The court acknowledged its disagreement with the reasoning in KPA v. Cyrus Maina Njoroge but emphasized that it is bound by the decision of the Court of Appeal as a superior court. Consequently, the claim was dismissed as statute-barred under Section 66 of the KPA Act.
Court Disposition
claim dismissed as statute-barred under Section 66 of the KPA Act
Orders
- The claim is dismissed under Section 66 of the KPA Act.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 158 OF 2015
BETWEEN
BERNARD ANTONY KIMWERE...............................CLAIMANT
VERSUS
KENYA PORTS AUTHORITY................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Claimant in person
Mrs. Ikegu, Senior Legal Officer for the Respondent
__________________________________________
RULING
1. The Respondent has filed Notice of Preliminary Objection, based on Section 66 of the KPA Act. The Notice was filed on 24th October 2019.
2. The Section places a limitation of 12 months on filing of Claims against the KPA. There is similar limitation placed by existing law in actions brought against other Government Corporations.
3. The letter of dismissal is dated 23rd March 2012. The Claim was filed on 23rd May 2015, some 3 years after the date of the dismissal letter.
4. The Claimant states he initiated the process of an internal appeal, but was not advised on the outcome by the Respondent.
5. The arguments made by the Parties on Section 66 of the KPA Act, have been made before, and Courts have made judicial pronouncements. The Court can cite the decisions supplied by Respondent through its list of 21st November 2019, as capturing these arguments.
6. This Court does not agree with the reasoning and decision of the Court of Appeal in the case ofKPA v. Cyrus Maina Njoroge.
7. There is a lot of persuasion in the Submissions made by the Claimant today, on the effect of Section 66 on his Claim.
8. The Court, as stated in earlier decisions, cannot however, disregard decisions, made by the Court of Appeal. These decisions, made by a Superior Court, are binding on this Court.
9. The advice of this Court to the Claimant herein, is that he pursues his arguments at the Court of Appeal.
10. The Court defers to the decision of the Court of Appeal in KPA v. Cyrus Maina Njoroge, and makes the following Orders:-
a) The Claim is dismissed under Section 66 of the KPA Act.
b) No order on the costs.
c) Parties shall be supplied with a copy of the Ruling and Proceedings, to enable them pursue their arguments on appeal.
d) The file is closed.
Dated and delivered at Mombasa this 21st day of November 2019.
James Rika
Judge