[2018] KEELRC 1403 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 753 OF 2017

(Formerly HCCC No. 1713 of 2002 at Nairobi)

JAMES M. MUINDI ....................................................PLAINTIFF

- VERSUS -

KENYA PORTS AUTHORITY............................... DEFENDANT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The plaintiff filed the plaint on 14. 11. 2002 through Muli Koli & Company Advocates. The plaintiff prayed for judgment against the respondent for:

a) General damages for unlawful dismissal and terminal benefits.

b) Costs of the suit.

c) Interest on (a) and (b).

d) Any other relief that the Honourable Court may deem fit to grant thereof.

At paragraph 3 of the plaint the plaintiff stated that he was in the service of the respondent from 09. 07. 1974 up to 14. 06. 1995 when he was unfairly, unlawfully, and unproceduraly interdicted and consequently dismissed from employment on 08. 12. 1995.

On 05. 12. 2005 the defendant filed a preliminary objection through Ruth Onyancha Advocate that the suit was bad in law and does not lie as it was filed in contravention of the time limited for filing suits under the Kenya Ports Authority Act.

The plaintiff changed his advocates to Maanzo & Company Advocates and the defendant changed the advocates to Addraya Dena Advocates. In the response to the statement of claim filed on 22. 06. 2018, it was stated that the suit was time barred as it was filed outside the time of limitation in section 66 of the Kenya Ports Authority Act.

It was submitted for the defendant that jurisdiction is everything without which, the Court must down its tools. The plaintiff submits that it filed HCMA No. 990 of 2002 and obtained leave to file the present suit out of time. The order of 12. 11. 2002 granted the leave and the suit was filed accordingly.

It was submitted that the suit was filed 6 years and 11 months late outside the one year prescribed under section 66 of the Kenya Ports Authority Act. It was submitted that the suit was also 6 months outside the Limitation of Actions Act that provided for 6 years of limitation under section 4 thereof. Further leave obtained to file the suit was not effective to validate the suit because under sections 27 to 30 of the Limitation of Actions Act, extension of time was only possible for a cause of action in tort and not contract. The order was granted ex parte and this was the first opportunity for the defendant to challenge the same. Thus the preliminary objection should succeed. The defendant cited Divecon –Versus- Samani(1995-1998)1EA 48 at 54where it was held that after 6 years of limitation, a cause of action founded on contract cannot be entertained and the Court cannot extend such time for the bringing of the action. The defendant also relies on Rift Valley Railway (Kenya) Ltd –Versus- Hawkins Wagunza Musonye & Another [2016]eKLR where the Court of Appeal held that where a statute limits time for bringing an action, no court can extend that time, unless the statute itself allows extension of time. The respondent also cited Samuel Kamau Macharia & Another–Versus- Kenya Commercial Bank Limited & 2 Others [2012] eKLRwhere the Supreme Court held that a court’s jurisdiction must flow from a constitutional or statutory provision and a court’s jurisdiction to entertain a matter before it cannot be one of mere procedural technicality but it goes to the very heart of the matter, for without jurisdiction the Court cannot entertain any proceedings. Further a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

The Court has considered the submissions and finds the defendant’s submissions as valid. The leave granted has been successfully challenged as given without jurisdiction and the suit stands time barred. The Court therefore lacks jurisdiction. The plaintiff must have been under impression that the suit was properly before the Court in view of the leave granted and in that consideration each party will bear own costs of the suit.

In conclusion the preliminary objection is hereby upheld and the suit is struck out with orders each party to bear own costs of the suit.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE