[2013] KEELRC 163 (KLR)
The court held that the claim was filed outside the three-year limitation period stipulated by Section 90 of the Employment Act 2007. The statutory language is mandatory and does not permit the court to extend time for filing employment claims. The claimant did not apply for extension of time, and ongoing...
Source-derived case information.
- Citation
- [2013] KEELRC 163 (KLR)
- Parties
- Claimant: Francis Mwaura Mboche; Respondent: Nacico Co-operative Savings & Credit Society
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1513 of 2011
- Procedural Posture
- Employment Claim / Ruling on Preliminary Objection
- Outcome
- claim dismissed as time-barred
- Judges
- J Rika
- Legal Topics
- Limitation Periods, Retirement Benefits, Statutory Bar, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwaura Mboche
Claimant
Nacico Co-operative Savings & Credit Society
Respondent
Procedural Posture
Employment Claim / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period under Section 90 of the Employment Act 2007.
- 2 Whether the court has jurisdiction to extend time for filing employment claims beyond the statutory period.
- 3 Whether ongoing communication regarding retirement benefits affects the limitation period.
Ratio Decidendi
The court held that the claim was filed outside the three-year limitation period stipulated by Section 90 of the Employment Act 2007. The statutory language is mandatory and does not permit the court to extend time for filing employment claims. The claimant did not apply for extension of time, and ongoing communication with the employer regarding retirement benefits did not suspend or extend the limitation period. Consequently, the preliminary objection was upheld and the claim was dismissed as time-barred.
Court Disposition
claim dismissed as time-barred
Orders
- The claim is dismissed for being filed outside the statutory limitation period.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 1513 OF 2011
BETWEEN
FRANCIS MWAURA MBOCHE …………………….……………………...........…………………….CLAIMANT
VERSUS
NACICO CO-OPERATIVE SAVINGS &
CREDIT SOCIETY …………………………………………………………………….....………….RESPONDENT
Rika J
CC. Mr. Kidemi
Mr. Okenyo holding brief for Kimani instructed by Kimani Richu And Company Advocates for the Claimant
Mrs Oketch instructed by Hamilton Harrison and Mathews, Advocates for the Respondent
RULING
1. This dispute comes up for ruling on a preliminary legal challenge made by the Respondent, on the validity of the Claim. The Claimant was retired in December 2007, and filed this Claim on 6th September 2011. He seeks retirement dues of 30 days’ salary for each of the 29 years he completed in service.
2. The Respondent argues that the Claim was filed outside the 3 year statutory limitation allowed under Section 90 of the Employment Act 2007. It is time-barred. The Claimant explains that he was in communication with his employer, on the payment of his retirement benefits, and it would not be fair if this Claim was defeated on the ground that it was filed late. The ends of justice would be defeated. The Limitation of Actions Act Cap 22 the Laws of Kenya allows the Court to extend time.
3. The Court is persuaded that the Claim was filed outside the time given under Section 90, and is time barred. The wording of Section 90 of the Employment Act 2007 does not leave this Court with any room to extend time in the manner suggested by the Claimant. He came to Court 4 years after his retirement, and did not in any case, make any application for extension of time. The Court is satisfied that the preliminary objection is merited. The Claim is dismissed with no order on the costs.
Dated and delivered at Nairobi this 17th day of September, 2013
James Rika
Judge