[2014] KEELRC 101 (KLR)
The court held that it lacked jurisdiction to extend time for the applicant to bring a fresh claim regarding an employment dispute that arose in 1998, as the Limitation of Actions Act does not empower the court to do so in these circumstances. The applicant failed to provide sufficient reasons for not prosecuting...
Source-derived case information.
- Citation
- [2014] KEELRC 101 (KLR)
- Parties
- Applicant: Francis Makorani Ddaido; Respondent: Bank of India
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 17 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Institute Suit
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Limitation of Actions, Transfer of Proceedings, Jurisdiction of Industrial Court, Employment Termination Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Makorani Ddaido
Applicant
Bank of India
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Institute Suit
Legal Issues
- 1 Whether the Industrial Court has jurisdiction to grant leave to institute a fresh claim arising from employment termination in 1998.
- 2 Whether the applicant is entitled to extension of time under the Limitation of Actions Act to file a fresh claim.
- 3 Whether the applicant should seek transfer of the pending High Court suit instead of filing a new claim.
Ratio Decidendi
The court held that it lacked jurisdiction to extend time for the applicant to bring a fresh claim regarding an employment dispute that arose in 1998, as the Limitation of Actions Act does not empower the court to do so in these circumstances. The applicant failed to provide sufficient reasons for not prosecuting the existing High Court suit or seeking its transfer to the Industrial Court. The court found it inappropriate to allow the institution of a fresh claim while related proceedings were still pending in the High Court. The proper course for the applicant was to seek transfer and continuation of the existing suit rather than attempt to circumvent limitation laws by filing anew.
Court Disposition
application dismissed
Orders
- The Ex-Parte Application dated 25th September 2014 is rejected.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
MISCELLANEOUS APPLICATION NUMBER 17 OF 2014
BETWEEN
FRANCIS MAKORANI DDAIDO...........................................................APPLICANT
VERSUS
BANK OF INDIA.................................................................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Ms. Maina for Ex-Parte Applicant
___________________________________________________________
RULING
1. The Ex-ParteApplicant seeks leave of this Court, to institute Suit against the Bank of India.
2. He was employed by the Bank of India. He left employment through Voluntary Early Retirement, sometime in 1998. He disputes the lawfulness of his exit, and filed a Claim at the High Court in Mombasa, registered as Civil Suit Number 164 of 2005.
3. The suit has not been heard and determined.
4. In the Ex-parte Application, the Applicant states that the best forum and/or Court to address employment issues, is the Industrial Court. This is so because the Constitution of Kenya has re-established the Industrial Court, as such an exclusive forum.
5. TheEx-ParteApplicant swore an affidavit in support of the Application ,on an unstated date, which apart from being technically unacceptable, is not clear on certain issues: it does not state why the Claim filed in the High Court in 2005 is still pending; there is no indication what steps the Applicant has taken to prosecute that Claim; it is not clear if the Applicant seeks to transfer the High Court Claim, and why he has not asked for transfer from the High Court; and he has not revealed in his Application why it is necessary to file a fresh Claim in the Industrial Court, while the transfer route has not been attempted or exhausted. The Applicant appears not clear also, on whether he should have some issues dealt with by the Industrial Court and others left to the High Court. It would be inappropriate for the Industrial Court to issue Orders which relate to proceedings which are pending at the High Court.
6. He invokes Section 27 and 28 of the Limitation of Actions Act Cap 22 the Laws of Kenya. The termination of employment took place in 1998. This Court has no power in extending time to the Applicant to bring a fresh dispute which arose in 1998. His best shot is to go back to the High Court and seek transfer and continuation of proceedings, rather than engage in filing of a fresh Claim and court the Law of Limitation of Time.
IT IS ORDERED:-
(a) The Ex-Parte Application dated 25th September 2014 is rejected.
Dated and Delivered at Mombasa this 14th day of November 2014.
James Rika
Judge