[2018] KEELRC 1584 (KLR)
The court held that section 90 of the Employment Act is mandatory and does not permit the court to extend the limitation period for filing employment claims. The applicant's reliance on Article 159(d) of the Constitution was misplaced, as the constitutional provision does not override express statutory limitations....
Source-derived case information.
- Citation
- [2018] KEELRC 1584 (KLR)
- Parties
- Applicant: Gedion Omunyin Aja; Respondent: International Committee of Red Cross
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1003 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- application dismissed as time-barred
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Extension of Time, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gedion Omunyin Aja
Applicant
International Committee of Red Cross
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the court has discretion to extend the limitation period under section 90 of the Employment Act.
- 2 Whether the applicant's reasons for delay justify extension of time to file the claim.
Ratio Decidendi
The court held that section 90 of the Employment Act is mandatory and does not permit the court to extend the limitation period for filing employment claims. The applicant's reliance on Article 159(d) of the Constitution was misplaced, as the constitutional provision does not override express statutory limitations. The reasons advanced for the delay, including the pendency of a criminal case and ongoing negotiations, could not justify extension of time where the statute expressly prohibits it. The court's hands were tied, and the application was dismissed as time-barred.
Court Disposition
application dismissed as time-barred
Orders
- The application for extension of time is dismissed.
- No extension of time is granted.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 1003 OF 2017
GEDION OMUNYIN AJA………………………………………...CLAIMANT
VERSUS
INTERNATIONAL COMMITTEE OF RED CROSS……......RESPONDENT
RULING
1. On 6th June 2017, I directed that the applicant addresses the court by way of written submissions why he thought this matter is an exception to the express provisions of section 90 of the Employment Act.
2. The applicant in his written submission contends that whereas section 90 of the Employment Act provides that claims under the Act must be made within 3 years, the court has discretionary power to extend the time to file the claim given that the claimant had a good reason. Counsel further submitted the court is guided by article 159(d) of constitution which provided that justice shall be administered without undue regard to procedural technicalities. The technicality here being the adherence to strict timelines as provided under section 90 of the Employment Act that an employment related matter should be filed within three years.
3. According to counsel the reason the claimant took more than three years was because his case was dependent on the outcome of his criminal case and further that when he issued a demand letter the respondent through their advocate responded asking him to hold and give room for negotiations.
4. Section 90 of the Act provides as follows:
“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based on 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 of or in the case of continuing injury or damage within twelve months next after cessation thereof”
5. The provisions of this section are couched in mandatory terms hence do not seem to allow the court to exercise any discretion once a matter governed by the section has failed to meet the set timelines. In any event, even under the Limitation of Actions Act the only claim arising out of tort can be filed out of time with leave of court. Contractual claims are set at six years with no option for extension. By parity of reasoning, employment relationship being contractual extension of time once lapsed seems not permissible.
6. The courts hands are therefore filed in the matter and cannot extend time once it has lapsed. The application is therefore dismissed.
7. It is so ordered.
Dated at Nairobi this 6th day of July, 2018
Abuodha J. N.
Judge
Delivered this 6th day of July, 2018
Abuodha J. N.
Judge
In the presence of:-
…………………………………...…… for the Claimant
………………………………………. for the Respondent