[2016] KEELRC 541 (KLR)
The court held that the intended suit was time barred under section 90 of the Employment Act, 2007, as the applicant's cause of action arose on 8 January 2008 and the three-year limitation period expired on or about 8 January 2011. The applicant failed to demonstrate any legal provision granting the court discretion...
Source-derived case information.
- Citation
- [2016] KEELRC 541 (KLR)
- Parties
- Applicant: Geoffrey Kiragu Njogu; Respondent: Public Service Commission; Respondent: Honourable Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 5 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Leave to File Out of Time
- Outcome
- Application dismissed as time barred under section 90 of the Employment Act, 2007.
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Unlawful Dismissal, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Kiragu Njogu
Applicant
Public Service Commission
Respondent
Honourable Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Leave to File Out of Time
Legal Issues
- 1 Whether the intended suit by the applicant is time barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has discretion to extend the limitation period for filing employment claims beyond three years.
Ratio Decidendi
The court held that the intended suit was time barred under section 90 of the Employment Act, 2007, as the applicant's cause of action arose on 8 January 2008 and the three-year limitation period expired on or about 8 January 2011. The applicant failed to demonstrate any legal provision granting the court discretion to extend the limitation period. The court found section 90 to be mandatory and, following binding precedent, concluded that no leave could be granted to file the suit out of time. Consequently, the preliminary objection succeeded on the ground of limitation, and the court did not address the issue of res judicata.
Court Disposition
Application dismissed as time barred under section 90 of the Employment Act, 2007.
Orders
- The application filed by way of the notice of motion dated 09.09.2016 is dismissed.
- Each party to bear own costs of the proceedings.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NYERI
MISCELLANEOUS APPLICATION NO. 5 OF 2015
GEOFFREY KIRAGU NJOGU.........................................CLAIMANT
VERSUS
PUBLIC SERVICE COMMISSION....................1ST RESPONDENT
HONOURABLE ATTORNEY GENERAL............2ND RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday, 14th October, 2016)
RULING
The applicant initiated the present proceedings by way of the notice of motion filed on 09. 09. 2016 through Jack Odhiambo Oronga Advocates. The applicant prayed for leave to file a petition out of time to challenge his dismissal from the public service. The respondents opposed the application by filing a preliminary objection on 19. 09. 2016 through P. Gisemba, the learned Litigation Counsel, for the Attorney General. The respondent urged that the intended suit was outside the time of limitation under section 90 of the Employment Act, 2007 prescribing 3 years of limitation for suits based on a contract of employment; and that the intended claim does not lie in law or otherwise as is non starter, bad in law, fatal and incurably defective. By the amended notice of preliminary objection filed on 29. 09. 2016 the respondents added the ground that the intended claim was res judicata in view of judgment in Judicial Review Application No. 31 of 2013 at Kerugoya and subsequently Civil Appeal No. 57 of 2014 at Nyeri upholding the judgment in the Judicial Review Application.
The 1st issue is whether the intended suit is time barred. The applicant was retired in the public interest by the letter dated 08. 01. 2008. Three years for filing suit based on that retirement decision lapsed on or about 08. 01. 2011. The intended suit would therefore be time barred under section 90 of the Employment Act, 2007. The applicant has not established the provision of law under which the court would exercise the discretion to extend the prescribed three years of limitation of the action. As cited for the respondents, and following The Hon. Attorney General and Another –Versus- Andrew Maina Githinji and Another [2016]eKLR, (Per Waki J.A), section 90 of the Employment Act, 2007 is in mandatory terms. Thus no leave can issue in the present case for the intended suit to be filed outside the period of limitation of 3 years. The preliminary objection will therefore succeed on that ground alone and the court need not delve into the issue of res judicata. The court has taken into account the belated filing of the amended notice of preliminary objection and all the circumstances of the case and each party shall bear own costs of the application.
In conclusion the preliminary objection as amended on 29. 09. 2016 is allowed on the ground that the intended suit is incurably time barred under section 90 of the Employment Act, 2007 and with orders:
a. The application filed for the applicant by way of the notice of motion dated 09. 09. 2016 is hereby dismissed.
b. Each party to bear own cost of the proceedings.
Signed, datedanddeliveredin court atNyerithisFriday, 14th October, 2016.
BYRAM ONGAYA
JUDGE