[2014] KEELRC 115 (KLR)
The court found that although Section 90 of the Employment Act prescribes a three-year limitation period for employment claims, Section 27 of the Limitation of Actions Act allows for extension of time where good cause is shown. The applicant demonstrated that he had instructed his advocate to file the suit within...
Source-derived case information.
- Citation
- [2014] KEELRC 115 (KLR)
- Parties
- Applicant: Henry Mwangi Mungai; Respondent: Karuri Civil Engineering Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 73 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- DI Wasike
- Legal Topics
- Limitation of Actions, Extension of Time, Employment Contracts, Failure to File on Time
- 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
Henry Mwangi Mungai
Applicant
Karuri Civil Engineering Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit out of time under Section 27 of the Limitation of Actions Act.
- 2 Whether Section 90 of the Employment Act bars extension of time for employment-related claims.
- 3 Whether the applicant's reliance on his advocate's assurances constitutes good cause for extension.
Ratio Decidendi
The court found that although Section 90 of the Employment Act prescribes a three-year limitation period for employment claims, Section 27 of the Limitation of Actions Act allows for extension of time where good cause is shown. The applicant demonstrated that he had instructed his advocate to file the suit within time and was misled into believing the suit had been filed. The failure to file was due to the advocate's negligence, not the applicant's lack of diligence. The court held that this constituted good cause for extension and that denying the applicant access to court due to his advocate's conduct would be unjust. Accordingly, the court exercised its discretion to grant leave to...
Court Disposition
application allowed
Orders
- The applicant is granted leave to file his claim out of time.
- The applicant shall file his claim within twenty one days of this order.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NYERI
MISC. APPLICATION NUMBER 73 OF 2014
HENRY MWANGI MUNGAI………….…………………………………………..CLAIMANT
VERSUS
KARURI CIVIL ENGINEERING LTD …………..…………………………….RESPONDENT
RULING
1. By ex-parte summons dated 23rd July, 2014, the applicant herein seeks leave of the Court to file a suit out of time.
2. In the supporting affidavit to the application, the applicant depones that he instructed his then advocates Ms. Wachira Nderitu to file a suit against the Respondents on his behalf and that on various occasions he visited the said advocates’ law firm and was informed a case had been filed on his behalf and that the same was about to be set down for hearing. He came to learn early in the year that the said advocates did not actually file his case.
3. He further deposes that he was diligent enough to file the suit but the failure by his counsel to file the suit on time was beyond his control. The applicant urged that the Court had jurisdiction to grant the order he was seeking.
4. Court’s generally have jurisdiction donated by Section 27 of the Limitation of Actions Act to extend time to file civil claims out of the limitation period prescribed by law.
5. Claims arising out of the employment contracts are governed by the Employment Act and must be filed within three years from the date of accrual of the cause of action. 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 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 case of continuing injury or damage within twelve months next after cessation thereof.
6. Section 4 of the Limitation Actions Act sets limitation period for several actions founded on tort or contract. Termination of employment claims are actions founded on contract. Ideally, were it not for Section 90 of the Employment Act, they ought to be brought within six years from the date of the accrual of the cause of action. This therefore means that the import of Section 90 is to exclude claims arising out of employment disputes from the ordinary contractual claims whose limitation period is six years.
7. This section however does not mean that a person who for good cause was unable to file a suit within the stipulated period cannot benefit from extension of time permissible under Section 27 of the Limitation of Action Act.
8. The applicant herein has deponed that he instructed an advocate to file a suit on his behalf and was under the belief that the same was filed and what remained was to set the suit down for hearing. The applicant later came to learn no such suit was filed. Whereas the conduct of his advocate is despicable and could easily land him in a suit for professional negligence, this must not be allowed to shut out the Claimant from accessing the Court to agitate his claim. In the circumstances the Court allows the application and directs that the applicant files his claim within twenty one days of this order.
9. It is so ordered.
Dated at Nairobi this 25th day of November 2014
Abuodha J. N.
Judge
Delivered this 25th day of November 2014
In the presence of:-
…………………………………………………………………………….for the Claimant and
……………………………………………………………………………….for the Respondent.
Abuodha J. N.
Judge