[2014] KEELRC 983 (KLR)
The court found that the claimant's cause of action for unfair dismissal accrued on 23rd June 2007, but the statement of claim was filed on 7th December 2012, well beyond the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The court held that it lacked statutory authority to extend...
Source-derived case information.
- Citation
- [2014] KEELRC 983 (KLR)
- Parties
- Claimant: James K. Nyaribo; Respondent: Permanent Secretary Ministry of Public Works; Respondent: Honourable Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 266 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- preliminary objection upheld; suit dismissed as time-barred
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Unfair Dismissal, 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
James K. Nyaribo
Claimant
Permanent Secretary Ministry of Public Works
Respondent
Honourable Attorney General
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the claimant's suit is time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to extend the limitation period prescribed by section 90 of the Employment Act, 2007.
- 3 Whether any exceptions under section 39 of the Limitation of Actions Act apply to the claimant's case.
Ratio Decidendi
The court found that the claimant's cause of action for unfair dismissal accrued on 23rd June 2007, but the statement of claim was filed on 7th December 2012, well beyond the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The court held that it lacked statutory authority to extend the limitation period, and no exceptions under section 39 of the Limitation of Actions Act were established by the claimant. Consequently, the suit was time-barred and constituted an abuse of the court process. The preliminary objection was upheld and the statement of claim dismissed with costs.
Court Disposition
preliminary objection upheld; suit dismissed as time-barred
Orders
- The statement of claim is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 266 OF 2013
(Formerly Cause No. 2462 of 2012 at Nairobi)
JAMES K. NYARIBO.......................................................CLAIMANT
- VERSUS -
PERMANENT SECRETARY MINISTRY OF
PUBLIC WORKS..............................................1ST RESPONDENT
HONOURABLE ATTORNEY GENERAL.........2ND RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 9th May, 2014)
RULING
The respondents filed a notice of preliminary objection on 15. 03. 2013 against the claimant’s suit on the grounds:
That the suit offends the provisions of section 90 of the Employment Act and ought to be dismissed with costs.
That the suit is clearly time-barred and an abuse of the court process and ought to be dismissed.
By consent of the parties, the case was fixed for hearing on 5. 5.2014. The claimant and the claimant’s counsel did not attend court. The respondents’ counsel was present and the court directed that the preliminary objection be urged.
It was submitted for the respondents that the claimant’s statement of claim was filed on 7. 12. 2012 whereas the cause of action accrued on 23. 06. 2007. The suit was therefore time-barred under section 90 of the Employment Act, 2007. The section provides as follows:
“90. 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 or in the case of continuing injury or damage within twelve months next after the cessation thereof.”
Paragraph 4 of the statement of claim is clear that the claimant alleges that he was unfairly dismissed on 23. 06. 2007. The statement of claim was filed on 07. 12. 2012 obviously long after the lapsing of 3 years on or about 23. 06. 2010.
In Nicodemus Marani-Versus- Timsales Limited [2014] eKLR, this court held that the court is not vested with statutory power to extent the 3 years prescribed in section 90 of the Employment Act, 2007. The court further stated, “....Thus, the court holds that section 90 of the Employment Act provides a time of limitation of 3 years and in an appropriate case, exceptions may exist like is envisaged in section 39 of the Limitation of Actions Act.”
The court finds that in this case the exceptions in section 39 of the Limitation of Actions Act have not been established.
In conclusion, the preliminary objection is upheld and the statement of claim is dismissed with costs.
Signed, datedanddeliveredin court atNakuruthisFriday 9th May, 2014.
BYRAM ONGAYA
JUDGE