[2017] KEELRC 1650 (KLR)
The court found that Section 90 of the Employment Act, 2007, imposes a strict limitation period for filing employment claims and does not confer jurisdiction on the court to extend time beyond the statutory period. The applicant's reliance on the pendency of a criminal case was rejected, as established jurisprudence...
Source-derived case information.
- Citation
- [2017] KEELRC 1650 (KLR)
- Parties
- Applicant: David Nderitu Mwangi; Respondent: Tusker Mattresses Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 121 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Limitation Periods, Extension of Time, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Nderitu Mwangi
Applicant
Tusker Mattresses Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing an employment claim under Section 90 of the Employment Act, 2007.
- 2 Whether the pendency of a criminal case justifies delay in filing an employment claim.
Ratio Decidendi
The court found that Section 90 of the Employment Act, 2007, imposes a strict limitation period for filing employment claims and does not confer jurisdiction on the court to extend time beyond the statutory period. The applicant's reliance on the pendency of a criminal case was rejected, as established jurisprudence holds that criminal proceedings do not suspend or affect the limitation period for employment claims. Consequently, the application for extension of time was declined for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The claimant's application dated 26th October 2016 is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO 121 OF 2016
DAVID NDERITU MWANGI.............................................CLAIMANT
VERSUS
TUSKER MATTRESSES LIMITED..........................RESPONDENT
RULING
1. By this miscellaneous application the Claimant seeks leave of the Court to file his claim against the Respondent out of time. The application which is supported by the affidavit of Vincent Githu Kabi, Advocate sworn on 26th October 2016 is based on the following grounds:
a) That the statutory period stipulated under Section 90 of the Employment Act, 2007 within which to institute proceedings against the Respondent has expired;
b) That the failure to institute the proceedings within the statutory period of three (3) years was occasioned by the delay in determination of Criminal Case No 1646 of 2008 (Republic v David Nderitu Mwangi)Which lasted seven (7) years;
c) That the criminal case has since been determined with the Claimant being acquitted on 30th June 2015;
d) That in August 2015, the Claimant reported a dispute at the Ministry of Labour, Social Security and Services;
e) That the Respondent agreed to settle the Claimant’s claim but failed to honour its commitment;
f) That it is in the interest of justice that the orders sought are granted.
2. The issue for determination in this application is whether the Claimant has made out a case for extension of time for filing of a claim against the Respondent.
3. The Claimant cites the pendency of Criminal Case No 1646 of 2008 as the reason for the delay in bringing his claim. This Court has held in the past that the pendency of a criminal trial against an employee has no bearing on other processes relating to the employment contract (see Timothy Asudi Malwa v E-Gap Solutions Limited & another [2014]eKLR)
4. In reference to Section 90 of the Employment Act, 2007 the law is that the Court has no jurisdiction to extend time for filing of claims falling under the Act (see Maria Machocho v Total Kenya Limited [2013] eKLR; George Hiram Ndirangu v Equity Bank [2015] eKLRandJustus Ochido Ope v Kenyatta University [2016] eKLR).
5. The Claimant’s application dated 26th October 2016 is therefore declined with no order for costs.
Orders accordingly
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI
THIS 10TH DAY OF MARCH 2017
LINNET NDOLO
JUDGE
Appearance:
Mr. Kithinji for the Claimant
No apperance for the Respondent