https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1363

Bidco Africa Limited v Muthembwa (Employment and Labour Relations Appeal E078 of 2025) [2026] KEELRC 1363 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1363 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E078 of 2025 JW Keli, J May 15, 2026 Between Bidco Africa Limited Appellant and Stephen Mutua Muthembwa Respondent (Being an Appeal from the Ruling and Orders of the Hon. Y.B. Mukhula (PM) delivered on 13th November, 2024 in Thika Misc. Civil Case No. E006 of 2024) Judgment 1.The Appellant herein, being dissatisfied with the Ruling and Orders of the Hon. Y.B. Mukhula (PM) delivered on 13th November, 2024 in Thika Misc. Civil Case No. E006 of 2024 between the parties filed a memorandum of appeal dated the 17th of March 2025 seeking the following orders:-a.This appeal be allowed.b.The ruling and order of the Honourable Magistrate delivered on 13th November 2024 and any other consequential orders be set aside.c.The suit filed in Thika Magistrates Court CMELRC E001 OF 2025: Stephen Mutua Muthembwa v Bidco Africa Limited which was filed consequent upon the impugned ruling/order be struck out with costs to the Respondent therein.d.The costs of this Appeal be awarded to the Appellant.e.This Honourable court makes such and further orders as it deems fit and just to meet the ends of justice. grounds of the appeal 2.The Honourable Trial Magistrate erred in law and fact by granting the Respondent leave to file suit against the Appellant arising from the Respondent’s employment that ended on 10th September 2019 after the lapse of the statutory limitation period set out in Section 90 of the Employment Act. 3.The Honourable Trial Magistrate erred in law and in fact by failing to consider that the Respondent’s cause of action was extinguished upon the lapse of the statutory limitation period. 4.The Honourable Trial Magistrate erred in law and fact by failing to consider that the court has no jurisdiction to extend the time for filing a suit where the statutory limitation period has lapsed under section 90 of the Employment Act, 2007. 5.The Honourable Trial Magistrate erred in law and in fact by granting the ex parte orders for filing of a suit outside the statutory limitation period before the Appellant was given an opportunity to be heard. 6.The Honourable Trial Magistrate erred in law and in fact by failing to consider that no reasonable or plausible explanation for the delay in filing the suit had been given by the Respondent in any event. Background To The Appeal 7.The Respondent instituted suit vide a notice of motion dated 10th January 2024 seeking the following reliefs:i.That leave be granted to the Applicant Stephen Mutua Muthembwa to file suit as against Bidco Africa Limited after the limitation period.ii.That costs of this application abide the results of the intended suit.(pages 3-4 of ROA dated 16th September 2025). 8.The notice of motion was supported by the Affidavit of the Applicant/Respondent sworn on 10th January 2024 and annexure thereto (pages 5-7 of ROA). 9.By an order issued on 13th November 2024, the Trial Magistrate Court allowed the application dated 10th January 2024, and granted the Applicant/Respondent leave to file suit against the Appellant herein after lapse of the limitation period, despite acknowledging that the application should be served upon the Appellant (order at page 8 of ROA, an proceedings at page 9 of ROA). Determination 10.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 11.The court found consensus by the parties that the issue for determination in the appeal was -i.whether the court had the jurisdiction to expand the time for filing an employment claim out of the statutory timeframe prescribed under Section 89 of the Employment Act. 12.The grounds of appeal were –a.The Honourable Trial Magistrate erred in law and fact by granting the Respondent leave to file suit against the Appellant arising from the Respondent’s employment that ended on 10th September 2019 after the lapse of the statutory limitation period set out in Section 90 of the Employment Act.b.The Honourable Trial Magistrate erred in law and in fact by failing to consider that the Respondent’s cause of action was extinguished upon the lapse of the statutory limitation period.c.The Honourable Trial Magistrate erred in law and fact by failing to consider that the court has no jurisdiction to extend the time for filing a suit where the statutory limitation period has lapsed under section 90 of the Employment Act, 2007.d.The Honourable Trial Magistrate erred in law and in fact by granting the ex parte orders for filing of a suit outside the statutory limitation period before the Appellant was given an opportunity to be heard.e.The Honourable Trial Magistrate erred in law and in fact by failing to consider that no reasonable or plausible explanation for the delay in filing the suit had been given by the Respondent in any event. Decision 13.The court focused on the issue of jurisdiction under section 89 of the Employment Act on limitation of time as framed by the parties. The respondent approached the trial court vide Notice of Motion dated 10th January 2024 for Orders- that leave be granted to the applicant Stephen Mutua Muthembwa to file suit as against Bidco Africa Limited after the limitation of time. The basis of the application was that since the termination of the employment, the applicant had not been able to get resources to file the claim due to bad health and relied on a medical report dated 29th December 2023, in which it was stated he had suffered back pains since 2018 and was under treatment. The application was undefended, and the appellant stated it was not served. The trial court issued a default Order as follows- ‘in Open Court On The 13th Day Of November 2024 Before Hon.y.m. Barasa (principal Magistrate). Order 14.This Matter Coming Up For Hearing Of An Application Dated 10th JanuarY 2024 before Hon. Y.M. Barasa (PM) on 13th Day Of November, 2024 and upon the same;It is hereby ordered:1.That Leave Be And Is Hereby Granted To The Applicant, Stephen Mutua Muthembwa To File Suit As Against Bidco Africa Limited after the limitation period.2.That costs of the application to abide the results of the intended suit.Given Under My Hand And The Seal Of The Court This 13th Day Of November 2024’(page 8 of ROA). The reason for the decision was not disclosed. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 15.The relevant law on time limitation in employment disputes is section 89 of the Employment Act(Revised -2024 from section 90 to read 89) to wit- ‘89. Limitations 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’’ 16.It was not in dispute that the respondent approached the trial court while aware his claim was out of time by 3 years under section 89 of the Employment Act. The respondent pleaded in the application before the trial court that the employment was terminated on 1 September 2019, and the application for extension of time dated 10th January 2024 and allowed on 13th November 2024. The 3 years lapsed on or before September 2022. 17.The respondent submitted that the court had discretion to extend time and indeed extended the time for filing the claim and stated that even this court extended time for the appellant to file an appeal out of time. The respondent relied on the decision in the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) stated as follows: “Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; Whether there is a reasonable reason for the delay; The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time." The Respondent submitted that the Application dated 10th January, 2024, demonstrated that due to unfair termination of his contract of employment, the Respondent fell into immense stress, anguish and economic struggles, which ushered in a myriad of health complications. That Medical Reports to that extent were annexed and produced before the trial court. It is on account of continuous sickness, which rendered the Respondent financially unable to seek the legal services of an advocate, that the trial court allowed the said application. 18.The question of extension of the time to file employment claims post expiry of 3 years as stated in section 89 of the Employment Act, in the opinion of the court, has been settled by the Court of Appeal in decisions relied on by the appellant in submissions. In the case of Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) the Court of Appeal considered the question of extension of time under Section 90 of the Employment Act (before amendment of the Act to read Section 89 and the applicability of the Limitation of Actions Act and held as follows: “Were the respondents time barred in filing their claim in this case? By expressly inserting Section 90, the intention of Parliament , in my view, at least in part, must have been to protect both the employer and the employee from irredeemable prejudice if they have to meet claims and counter claims made long after the cause of action had arisen when memories have faded, documents lost, witnesses dead or untraceable. It is understandable therefore when the Section peremptorily limits actions by the use of the word ‘shall’. Having found that the cause of action arose on 2nd February 2010 and that the claim was filed on 16th June 2014, it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1st February 2013, and I so hold.” The Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR, following its earlier decision in Divecon Limited -vs- Samani [1995-1998] 1 EA P.48, stated as follows: “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, a decision relied upon by Radido, J 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. Although for different reasons, as we have said Wasilwa, J. refused to extend the limitation period in the said Cause thus prompting this appeal. Even if the appeal was heard on 19th November 2014, we have no doubt that it was going to be dismissed. It follows that even if we allow the appellant’s present application and restore her appeal, it will still be dismissed on the self-same ground that the limitation period is never extended in claims arising from contracts.’ I find consensus by the superior courts that time cannot be extended for claims under employment contracts pursuant to section 89 of the Employment Act. It is not an issue of discretion but the law. Jurisdiction is everything and without it the court must down its tools. The Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others [2012]eKLR stated as follows: - A Court’s jurisdiction flows from either the Constitution or legislation or both.’ Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot appropriate to itself jurisdiction exceeding that which is conferred upon it by law. The court finds that the law is settled that the limitation period is never extended in matters related to contracts. 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. I upheld the decisions of the Court of Appeal cited above to hold that the trial court erred in law in granting leave to the respondent to file the claim, based on an employment contract, out of the time prescribed under section 89 of the Employment Act, which is held as mandatory. It is not an issue of discretion but the law. The court, like the Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR, sympathized with the respondent for the reason of having lacked funds, on account of illness, to file suit on time. However, as much as I sympathize with the respondent, I cannot help him as the law ties my hands, and so did it for the trial court. The appeal is allowed. The Ruling and Order of the Hon. Y.B. Mukhula (PM) delivered on 13th November, 2024 in Thika Misc. Civil Case No. E006 of 2024 is set aside and substituted with Orders-a.That the application by way of Notice of Motion dated 10th January 2024 is dismissed. The suit instituted pursuant to the Order was not defended; thus, no costs are awarded.b.The suit filed in Thika Magistrates Court CMELRC E001 OF 2025: Stephen Mutua Muthembwa versus Bidco Africa Limited which was filed pursuant to the impugned Order is struck out.c.The court considered that the appellant approached the court out of time and leave was granted to appeal. The respondent, a former employee of the appellant, alleged financial and health challenges as reasons for the delay in filing the suit. To temper justice with mercy, I deviate from the principle that costs follow the event and make no order as to costs in the suit before the lower court and on appeal. 19.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant – WangonguRespondent - Kingu h/b Mburu