https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1432

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E1002 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **EVALINE CHEROTICH CHEPKWONY ……….…..…….…CLAIMANT** **VS** **NYAYO TEA ZONES DEVELOPMENT** **CORPORATION ………………………………………...….RESPONDENT** **RULING** 1. The Claimant/ Applicant filed a Chamber Summons application dated 7th October 2025 seeking orders THAT: - 2. *The Applicant be granted leave to file a Statement of Claim out of time against the Respondent for unfair and unprocedural termination of employment.* 3. *The draft Statement of Claim annexed to the Supporting Affidavit be deemed duly filed upon the grant of leave.* 4. *The costs of this application be provided for.* 5. *Any other orders this honorable court may deem fit to grant.* **Claimant/Applicant’s Case** 1. The Applicant avers that she was employed by the Respondent in its Commercial Unit Warehouse at Nyayo House, Nairobi, until 1st September 2022 when she was summarily dismissed for alleged gross misconduct. She contends that the dismissal was unfair, unlawful and un-procedural, contrary to Sections 41, 43 and 45 of the Employment Act, 2007. 2. She avers that following an internal audit conducted between October and November 2021, she responded to the allegations through her letter dated 22nd November 2021, clarifying that alleged misappropriated funds included personal advances, not corporate funds, and highlighting systemic control weaknesses, as confirmed by the Respondent’s audit reports. 3. The Applicant states that she attended a disciplinary hearing on 14th July 2022 but critical documents, including the Audit Report, witness statements and reconciliation documents, were withheld from her, thereby impairing her defence during the disciplinary process and in the intended appeal thereafter. 4. The Applicant further avers that on 21st September 2022, she requested the Respondent to furnish her with all documents relied upon in effecting her dismissal to enable her lodge an appeal before the Public Service Commission (PSC) pursuant to Section 85 of the Public Service Commission Act, 2017; the Respondent declined to provide the said documents. 5. She asserts that on 5th January 2023, the PSC directed the Respondent to avail the requested documents, citing Section 43(g) of the Fair Administrative Action Act, 2015, Article 35 of the Constitution and Section 4 of the Access to Information Act, 2016. However, the Respondent allegedly persisted in refusing to disclose the documents. 6. The Applicant states that on 19th May 2023, she reiterated her request for the documents and specifically noted that the lead investigator’s report and other key disciplinary materials had not been availed to her, thereby frustrating her ability to effectively pursue her appeal before the PSC. 7. The Applicant contends that the Respondent’s deliberate refusal to disclose material documents amounted to concealment of facts and consequently tolled the limitation period under Section 26 of the Limitation of Actions Act, Cap. 22, until such time as she could reasonably pursue her claim following advice from the PSC issued on 14th May 2025. 8. She further avers that on 14th May 2025, the PSC directed the Respondent to furnish her with all disciplinary materials and advised her to file a claim before the Employment and Labour Relations Court, while confirming that she was still within the limitation period at that time. However, logistical constraints, including securing legal representation and raising funds, delayed the filing of the present suit until October 2025. 9. The Applicant maintains that her intended claim has overwhelming chances of success as the Respondent ignored the systemic control deficiencies identified in its own audit reports, which allegedly recommended management review as opposed to attributing sole culpability to her. She further contends that she was denied procedural fairness as material documents were withheld throughout the disciplinary process. 10. It is the Applicant’s case that the Respondent’s conduct violated her constitutional rights under Article 35 on access to information, Article 41 on fair labour practices, Article 47 on fair administrative action and Article 50 on fair hearing, thereby entitling her to equitable relief under Article 159(2)(d) of the Constitution. 11. The Applicant further avers that no prejudice shall be occasioned to the Respondent if leave is granted since employment and audit records are statutorily required to be maintained under Section 74 of the Employment Act, 2007. She contends that the delay in filing the suit was occasioned by the Respondent’s own obstruction and refusal to avail the relevant documents. 12. The Applicant therefore urges the Court to allow the claim to proceed in the interest of substantive justice and for purposes of upholding her constitutional and statutory rights. **Respondent’s Case** 1. In opposition to the application, the Respondent filed Grounds of Opposition dated 5th February 2026 on the following grounds: 2. *THAT the Application is bad in law as Section 90 of the Employment Act, 2007 is couched in mandatory terms that all employment claims must be filed within three (3) years from the date of the cause of action. The Claimant was summarily dismissed on 1st September, 2022 and as such the period to file the claim lapsed on 1st September, 2025.* 3. *THAT this honourable court lacks jurisdiction to entertain or extend time for a claim filed outside the limitation period under Section 90 of the Employment Act, 2007.* 4. *THAT it is trite law as decided by the Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya (Civil Appeal (Application) 28 of 2014) [2015] KECA 257 (KLR) (6 November 2015) (Ruling), that the limitation period can never be extended in matters based on contracts such as that of employment.* 5. *THAT notwithstanding, the reason stated by the claimant, leading to the delay in filing the claim is not merited as the documents relied upon by the Respondent before termination were supplied on 22nd November, 2021, and the said information was relayed again to the claimant upon further request on 4th October, 2022 and 8th May, 2023, months before the prescribed period lapsed. (As evidenced in the claimant’s documents before this honorable court)* 6. *THAT the Application is as such vexatious, frivolous, scandalous and an outright abuse of the court process.* 7. *THAT the Application be dismissed with costs to the Respondent* **Claimant/Applicant’s Submissions** 1. The Applicant submitted that the principles governing Preliminary Objections are now well settled in law. Reliance was placed on the locus classicus case of ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696*** where the Court held that: *“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion………..A Preliminary Objection is a point of law which must not be blurred with factual details liable to be contested.”* 2. It was submitted that the Respondent’s Preliminary Objection does not meet the threshold set out in the ***Mukisa Biscuit*** case as it raises contested factual matters regarding the supply of disciplinary documents, concealment of material evidence and the effect of the Public Service Commission’s intervention in the dispute. The Applicant argued that these are evidentiary issues requiring interrogation through a full hearing and cannot properly be determined summarily by way of a Preliminary Objection. 3. On whether the suit is time barred, the Applicant submitted that the limitation period was suspended by operation of Section 26 of the Limitation of Actions Act, Cap 22. Counsel submitted that the said provision stipulates that where an action is based on fraud, mistake or concealment of material facts, the limitation period does not begin to run until the claimant discovers the fraud or concealment or could with reasonable diligence have discovered it. 4. The Applicant submitted that the Respondent deliberately concealed critical disciplinary documents from her despite repeated requests. These documents, it was argued, included the lead investigator’s report referenced as NTZDC513VOL.X59, witness statements of the implicated sales representatives, supervisors’ periodic reports, cashbook reconciliations, audited payment summary reports and show cause letters together with responses from other implicated employees. 5. The Applicant submitted that the withheld documents were central to her defence, her right of appeal, and her ability to understand the full extent of her cause of action against the Respondent. 6. It was further submitted that the Respondent's concealment was fraudulent in the equitable sense. It was deliberate conduct designed to prevent the Claimant from mounting an effective appeal and, subsequently, from understanding the true basis of her dismissal 7. The Applicant submitted that the Public Service Commission by its letter dated 5th January 2023 expressly reminded the Respondent that under Section 43(g) of the Fair Administrative Action Act, Article 35 of the Constitution and Section 4 of the Access to Information Act, 2016, the Applicant was entitled to all information relied upon in arriving at the dismissal decision. Despite the said directive from the Commission, the Respondent allegedly persisted in withholding the documents. 8. The Applicant therefore submitted that the Respondent cannot be permitted to benefit from its own wrongdoing and concealment. She argued that by virtue of Section 26 of the Limitation of Actions Act, time could not begin to run until she discovered the concealment or could reasonably have discovered the same. 9. It was submitted that the Applicant only received confirmation of her right to pursue the present proceedings through the Public Service Commission’s communication dated 14th May 2025, which communication was allegedly received on 8th August 2025. The Applicant submitted that the suit having been filed on 16th October 2025, barely two months thereafter, was therefore filed within time. 10. The Applicant relied on the decision in [***Hellen Mauta Mutinda v County Government of Machakos & another [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/256/eng%402017-12-01) where Abuodha J. held that computation of limitation is ordinarily an arithmetic exercise unless there exist mandatory procedural steps beyond a claimant’s control which must first be exhausted before institution of proceedings. This was affirmed in [***Fred Nyambera v Kenya Post Office Saving Bank [2019] KEELRC 559 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/559/eng%402019-10-24). 11. The Applicant argued that the present matter falls within the exception contemplated in the foregoing authorities since she was actively pursuing mandatory processes before the Public Service Commission, being a constitutional commission with supervisory jurisdiction over the Respondent. She submitted that the proceedings before the Commission were beyond her control and time could therefore not run during the pendency of those proceedings. 12. The Applicant further submitted that her cause of action relating to constitutional violations and unfair termination only crystallized upon the Public Service Commission’s direction issued on 14th May 2025 when it became apparent that the Respondent would not avail the requested documents and that her only recourse lay before this Court. 13. On the issue of jurisdiction, the Applicant submitted that the present claim transcends an ordinary contractual employment dispute as it is anchored on alleged violations of constitutional rights and freedoms protected under Articles 35, 41, 47 and 50 of the Constitution. Reliance was placed on the decision in [***Lubengu v Ottichilo & 2 others [2024] KEELRC 33 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/33/eng%402024-01-25) where the Court observed that constitutional petitions raise considerations distinct from ordinary employment claims. 14. The Applicant also relied on the Court of Appeal decision in [***John Kimani Gitau v Public Service Commission & 2 others [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1003/eng%402019-07-10)where the Court observed that the Employment Act is “futuristic” and ought to be interpreted in line with constitutional values. 15. The Applicant submitted that although the above decision addressed the transitional application of the Employment Act, the underlying principle was that employment disputes must be interpreted in a manner that advances constitutional values and rights. She argued that a rigid and mechanical application of limitation periods so as to shut out litigants with genuine constitutional grievances would defeat the spirit and intent of Article 159(2)(d) of the Constitution. 16. The Applicant further submitted that Article 159(2)(d) obligates this Court to administer justice without undue regard to procedural technicalities. Reliance was placed on [***Ajienga v Nairobi Bottlers Limited [2023] KEELRC 2931 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2931/eng%402023-11-14) where the Court declined a claim filed outside the limitation period because the claimant had merely remained inactive. The Applicant however submitted that the present matter is distinguishable since she actively pursued her remedies before the Public Service Commission and awaited its determination and direction before approaching this Court. 17. It is the Respondent’s submission that the Respondent has not demonstrated any prejudice it would suffer if the matter proceeded for hearing. She argued that all relevant documents and witnesses remain available and that the Respondent had notice of her grievances throughout the material period. 18. The Applicant further submitted that the delay of approximately forty-five days was minimal, fully explained and attributable to the Respondent’s own conduct in withholding material documents. **Respondent’s Submissions** 1. The Respondent submitted that the application is unmerited and ought to be dismissed. It was submitted that Section 90 of the Employment Act, 2007 is couched in mandatory terms and requires all claims arising out of employment contracts to be filed within three years from the date of the act complained of. 2. The Respondent submitted that the Court lacks jurisdiction to extend time in employment claims once the statutory period lapses as was held in [***Josephat Ndirangu v Henkel Chemicals (EA) Ltd [2013] KEELRC 890 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/890/eng%402013-11-20) where the Court stated that: *“…….bearing in mind that the Employment Act, 2007 has no provision for grant of leave to institute claims out of time or to extend time within which to commence such actions.”* 3. It further relied on the Court of Appeal decision [***Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/257/eng%402015-11-06) wherein the Court held: *“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.”* 4. It was submitted that the Applicant having been dismissed on 1st September 2022 ought to have filed her claim on or before 1st September 2025. Counsel argued that the present suit having been filed outside the statutory period is statute barred and this Court lacks jurisdiction to entertain it. 5. The Respondent further submitted that the reasons advanced by the Applicant for the delay are unfounded since the documents relied upon during the disciplinary process had already been supplied to her on 22nd November 2021. Further information was again availed on 4th October 2022 and 8th May 2023 following additional requests by the Applicant. 6. The Respondent therefore submitted that there was no concealment of material documents capable of suspending time under Section 26 of the Limitation of Actions Act. Counsel argued that the Applicant had access to the relevant information well before expiry of the statutory limitation period. 7. It is the Respondent’s submission that this Court has no jurisdiction to extend time or entertain the suit and urged the Court to find that the Application is frivolous, vexatious and an abuse of the Court process and dismiss it with costs. 8. I have examined all the averments and submissions of the parties herein. The issue of allowing a party to file a suit out of time falls under section 89 of the ELRC Act which states as follows: **Notwithstanding the provisions of section**[**4(1)**](https://new.kenyalaw.org/akn/ke/act/1968/21/~part_II__sec_4__subsec_1)**of the Limitation of Actions Act (**[**Cap. 22**](https://new.kenyalaw.org/akn/ke/act/1968/21)**), 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.** 1. Under this section, no room is left to the court to allow any suit to be filed outside the 3 year window. The court’s hands are actually fettered when it comes to extending time to file a time barred claim outside time. In the circumstances, I find the application untenable and is declined and dismissed accordingly. There shall be no order of costs. **Dated, Signed and Delivered Virtually at Nairobi this 28th Day of May, 2026.** **HELLEN WASILWA** **JUDGE**