[2019] KEELRC 767 (KLR)
The court found that the claimant's suit was filed more than eight years after the cause of action arose, far exceeding the three-year limitation period prescribed by Section 90 of the Employment Act 2007 and Section 4(1) of the Limitation of Actions Act. The claimant did not seek or obtain an extension of time, nor...
Source-derived case information.
- Citation
- [2019] KEELRC 767 (KLR)
- Parties
- Claimant: Isaiah Simiyu Mulongo; Respondent: Nation Media Group
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 31 of 2018
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit struck out as statute barred; no order as to costs
- Legal Topics
- Limitation Periods, Jurisdiction of Court, Employment Termination, Contract of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Simiyu Mulongo
Claimant
Nation Media Group
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under the Limitation of Actions Act and Section 90 of the Employment Act 2007.
- 2 Whether the court has jurisdiction to entertain a suit filed outside the statutory limitation period.
Ratio Decidendi
The court found that the claimant's suit was filed more than eight years after the cause of action arose, far exceeding the three-year limitation period prescribed by Section 90 of the Employment Act 2007 and Section 4(1) of the Limitation of Actions Act. The claimant did not seek or obtain an extension of time, nor did he provide any justification for the delay. The court, bound by precedent and statutory provisions, held that it lacked jurisdiction to entertain the suit, as it was time-barred. Consequently, the suit was struck out.
Court Disposition
suit struck out as statute barred; no order as to costs
Orders
- The suit is struck out for being statute barred.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT BUNGOMA
CAUSE NO. 31 OF 2018
ISAIAH SIMIYU MULONGO.........................CLAIMANT
VERSUS
NATION MEDIA GROUP...........................RESPONDENT
R U L I N G
The respondent raised Primary Objection to wit that the suit is statute barred by dint of the Limitation of Actions Act Cap 22 Laws of Kenya. That the court Lacks Jurisdiction to entertain the matter.
On the facts set out in the statement of claim filed on 20th April, 2018, the Claimant worked for the Respondent from 2004 until the year 2009 when his services were terminated. He claims notice pay, leave allowance, Gratuity for the five year period served and medical allowance in the sum of Kshs 142,000.
The suit was filed on 20th April, 2018 more than eight (8) years from the date the cause of action arose.
The Claimant did not apply for extension of time within which to file the suit. No justification has been put forth therefore by the Claimant to warrant filing of this suit founded on contract out of time.
Section 4(1) of the Limitation of Actions Act Cap 22 Laws of Kenya provides that no suit based on contract should be filed after three years since the cause of action arose have expired.
This court is bound by the decision of the Court of Appeal in Nyeri Civil Appeal No. 21 of 2015, Attorney General & another –vs- Andrew Maina Githinji & another (2010) eKLR in which the court per Waki, Nambuye & Kiage JJA held no suit based on contract may be filed upon expiry of three year limitation period.
The respondent in the cited case filed suit upon conclusion of a criminal trial just like in the present case after the limitation period of 3 years had elapsed. The Court of Appeal cited the provisions of Section 90 of the Employment Act 2007 which states.
“ Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act (Cap 22) 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 or in the case of continuing injury or damage within twelve months next after the cessation action thereof.”
This suit was filed whilst the 2007 Act was operational and this provision is applicable to this suit.
The Court of Appeal held “ Having found that the cause of action arose on 2nd February 2010 and that the Claim was filed on 16th June 2014, it follows by simple arithmetic that the Limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1st February 2013 and so I hold”.
In the present case the cause of action having arisen in the year 2009 the 3 years period was surpassed by end of the year 2013. The suit was filed 8 years after the expiry of the limitation period.
The court lacks jurisdiction to entrain the suit and the same is struck out with no orders as to costs.
DATED, SIGNED and DELIVERED at BUNGOMA this 26Th day of SEPTEMBER, 2019.
HON. M. N. NDUMA, JUDGE
EMPLOYMENT AND LABOUR RELATIONS COURT
BUNGOMA
Appearance
Mr. Okule for the Respondent/Objector
Mr. Sichangi for the Claimant/Respondent
Joy: Court Assistant.