[2007] KEHC 1434 (KLR)
The court held that it lacked jurisdiction to extend the time for instituting the suit because the Civil Aviation Act expressly bars actions brought after twelve months from the date of the cause of action. The Limitation of Actions Act does not apply to claims for unlawful dismissal under the Civil Aviation Act,...
Source-derived case information.
- Citation
- [2007] KEHC 1434 (KLR)
- Parties
- Plaintiff: Clatus Odhiambo Macowenga; Defendant: Kenya Civil Aviation Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Time to File Suit
- Outcome
- application dismissed
- Legal Topics
- Unlawful Dismissal, Limitation Periods, Statutory Bar, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clatus Odhiambo Macowenga
Plaintiff
Kenya Civil Aviation Authority
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Time to File Suit
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a suit for unlawful dismissal under the Civil Aviation Act after the statutory limitation period has lapsed.
- 2 Whether the provisions of the Limitation of Actions Act apply to actions under the Civil Aviation Act for unlawful dismissal.
Ratio Decidendi
The court held that it lacked jurisdiction to extend the time for instituting the suit because the Civil Aviation Act expressly bars actions brought after twelve months from the date of the cause of action. The Limitation of Actions Act does not apply to claims for unlawful dismissal under the Civil Aviation Act, and even if it did, it does not permit extension of time for such claims. The delay of five days, however minimal, is immaterial as the statute does not confer any discretion on the court to extend the limitation period. The application for extension was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for extension of time is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 5 of 2007
CLATUS ODHIAMBO MACOWENGA..……………….…...... PLAINTIFF
VERSUS
KENYA CIVIL AVIATION AUTHORITY ……..…….……....DEFENDANT
RULING
The plaintiff’s claim is for special damages for unlawful dismissal. The dismissal occurred on 6. 1.2006 when the defendant by a letter of even date terminated the plaintiff’s employment. As the contract was with the defendant, the provisions of the Civil Aviation Act Chapter 394 of the Laws of Kenya
ertinent. Section 7 E bars claims instituted after the expiry of 12 months from the date of the cause of action. The Section reads as follows:-
“7E
(a) the action or legal proceedings shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect, omission or default complained of or in the case of a continuing injury or damage, within six months next after the cessation thereof.”
The plaintiff commenced this suit on 11. 1.2007. He was therefore late by a mere 5 days. Can he get an extension as he seeks in this application? The provisions of the limitation of Actions Act Chapter 22 Laws of Kenya under which extension of time to file suit in certain actions may be made have not been imported into the Civil Aviation Act. In any event, under the Limitation of Actions Act extension is not available in actions that sound in breach of contract or a claim for damages for unlawful dismissal.
It would appear therefore that I have no jurisdiction to extend the time within which this suit was instituted. The statute governing the relationship between the plaintiff and the defendant does not provide for the extension of time after the lapse of the limitation period of 12 months. It is not a question of discretion. The period of delay is not a consideration. In the premises even though the delay involved in this case is about 5 days, there is no discretion the court could exercise to extend the period as sought.
I sympathize with the plaintiff but sympathy is not a consideration when the provisions of the statute are clear.
The application is dismissed with no order as to costs.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF NOVEMBER, 2007.
F. AZANGALALA
JUDGE
Read in the presence of:
Otieno holding brief for Sijeny for the plaintiff.
F. AZANGALALA
JUDGE
23/11/07