[2016] KEELRC 538 (KLR)
The court found that the applicants' cause of action, being founded on contract, was subject to a six-year limitation period under Section 4(1)(a) of the Limitation of Actions Act. The court further held, following the Court of Appeal decision in Divecon Limited v Shirinkhanu Sadrudin Samani, that it lacked...
Source-derived case information.
- Citation
- [2016] KEELRC 538 (KLR)
- Parties
- Applicant: James Nyaga Wambugu and Gregory Martin Orego (suing on their own behalf and on behalf of 180 ex Telkom employees); Respondent: Telkom Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 78 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Notice of Motion for Extension of Time
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Limitation Periods, Terminal Dues, Retrenchment Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nyaga Wambugu and Gregory Martin Orego (suing on their own behalf and on behalf of 180 ex Telkom employees)
Applicant
Telkom Kenya Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Notice of Motion for Extension of Time
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a suit for recovery of terminal dues arising from employment retrenchment.
- 2 Whether the applicants' claim is statute-barred under the Limitation of Actions Act.
Ratio Decidendi
The court found that the applicants' cause of action, being founded on contract, was subject to a six-year limitation period under Section 4(1)(a) of the Limitation of Actions Act. The court further held, following the Court of Appeal decision in Divecon Limited v Shirinkhanu Sadrudin Samani, that it lacked jurisdiction to extend time for filing such claims beyond the statutory period. Consequently, the application for extension of time was dismissed as the court was bound by statute and precedent, regardless of the applicants' circumstances or reasons for delay.
Court Disposition
application dismissed
Orders
- The applicants' application for extension of time is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO 78 OF 2016
JAMES NYAGA WAMBUGU ANDGREGORY MARTIN OREGO
(SUING ON THEIR OWN BEHALFAND ON BEHALF OF 180 EX
TELKOM EMPLOYEES)…................................................APPLICANTS
VERSUS
TELKOM KENYA LIMITED………………..................….RESPONDENT
RULING
1. The Applicants’ application brought by an ex parte Notice of Motion dated 29th June 2016 and filed in Court on 30th June 2016 seeks extension of time for filing suit for recovery of terminal dues.
2. The application, which is supported by an affidavit sworn by James Nyaga Wambugu and Gregory Martin Orego on 29th June 2016 is based on the following grounds:
(a) The Applicants are former employees of the Government of Kenya;
(b) Sometime in the year 2000, the Government published a civil service reform programme that would involve retrenchment of staff working in parastatals wholly or partially owned by the Government;
(c) The Government issued circulars giving guidelines on how the staff retrenchment would be carried out;
(d) The Government put aside adequate finances to cater for the cost of the retrenchment;
(e) The Government went further to ensure that the Applicants were cushioned from economic vulnerability by exempting their retrenchment package from taxation;
(f) The Applicants and the other 180 employees were however sent home with a package that was contrary to the guidelines issued by the Government as well as employment laws and the Applicants were exposed to financial suffering;
(g) At the time, the Applicants priority was to find ways of alleviating the financial suffering they and their families were facing;
(h) The Applicants later came to learn of an intention to sue the Respondent through friends who had seen public advertisements;
(i) The Applicants forwarded their documents to committees that had been set up to pursue the court cases filed against the Respondent;
(j) Upon settlement of the cases, the Applicants learnt that their names and those of their 180 colleagues were missing from the list of those to be paid. It is at this point that they realized that their names were not included in the list of plaintiffs.
3. The Applicants’ plea is for extension of time for filing suit against the Respondent. Counsel submitted that the cause of action herein arose in 2006. The applicable limitation law would therefore be the Limitation of Actions Act.
4. Section 4(1)(a) of the Act provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued and as held by the Court of Appeal in Divecon Limited v Shirinkhanu Sadrudin Samani (Civil Appeal No. 142 of 1997), the Court has no jurisdiction extend time.
5. The Applicants’ application therefore fails and is dismissed with no order for costs.
6. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14THDAY OF OCTOBER 2016
LINNET NDOLO
JUDGE
Appearance:
Miss Kitonga for the Applicants
No appearance for the Respondent