[2018] KEELRC 677 (KLR)
The court found that the claimant's cause of action, which arose from an alleged wrongful dismissal in January 1999, was subject to a six-year limitation period under section 4(1) of the Limitation of Actions Act. Since the claim was filed in May 2014, more than fifteen years after the cause of action accrued, the...
Source-derived case information.
- Citation
- [2018] KEELRC 677 (KLR)
- Parties
- Claimant: Jesca Aseyo Evayo; Respondent: Premier Bag & Cordage Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 915 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Wrongful Dismissal, Termination of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesca Aseyo Evayo
Claimant
Premier Bag & Cordage Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's cause of action for wrongful dismissal and terminal dues is statute barred under section 4 of the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to entertain a claim brought more than six years after the cause of action accrued.
Ratio Decidendi
The court found that the claimant's cause of action, which arose from an alleged wrongful dismissal in January 1999, was subject to a six-year limitation period under section 4(1) of the Limitation of Actions Act. Since the claim was filed in May 2014, more than fifteen years after the cause of action accrued, the court held that it was statute barred. The court relied on the binding authority of Divecon v Samani, which clarified that courts have no jurisdiction to entertain contractual claims brought after the expiry of the statutory limitation period, nor can they extend time for such actions. Consequently, the court dismissed the claim without considering the substantive merits.
Court Disposition
claim dismissed
Orders
- The cause is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 915 OF 2014
JESCA ASEYO EVAYO................................................................CLAIMANT
v
PREMIER BAG & CORDAGE LIMITED...........................RESPONDENT
JUDGMENT
1. Jesca Aseyo Evayo (Claimant) commenced legal action against Premier Bag & Cordage Ltd (Respondent) on 30 May 2014 and she stated the Issue in Dispute asWrongful dismissal and refusal to pay terminal dues.
2. In the Statement of Claim at paragraphs 9 and 10, the Claimant pleaded that she was verbally notified of the termination of her contract on or around 4 January 1999.
3. In its Statement of Defence, the Respondent contended that the cause(s) of action advanced by the Claimant were statute barred by virtue of section 4 of the Limitation of Actions Act.
4. The Cause was heard on 23 April 2018 when the Claimant testified and closed her case, and on 18 July 2018 when the Respondent’s Human Resources Manager testified and thereafter the Respondent’s case was closed.
5. The Claimant’s submissions were not on file by this morning while the Respondent filed its submissions on 2 October 2018.
6. The Court will deal with the preliminary question of limitation which goes to jurisdiction first.
Limitation
7. The limitation period in relation to causes of action arising from contract in 1999 when the cause of action herein accrued was 6 years in terms of section 4 of the Limitation of Actions Act.
8. The Claimant therefore ought to have instituted these legal proceedings on or about 3 January 2005.
9. The Statement of Claim herein was lodged with the Court on 30 May 2014, some 15 years after accrual of the cause(s) of action.
10. Based on the binding authority of the Court of Appeal in Divecon v Samani (1995-1998) EA 48 that to us, the meaning of the wording of section 4(1) ……is clear beyond any doubt. It means that no one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be donenamely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action……A perusal of Part III shows that its provisions do not apply to actions based on contract. In light of these clear statutory provisions, it would be unacceptable to imply as the learned Judge of the Superior Court did, that ‘‘the wording of section 4(1) of the Limitation of Actions Act (Chapter 22) suggests a discretion that can be invokedthis Court finds that the cause(s) of action herein is statute barred.
11. With the conclusion, it is not necessary for the Court to examine the other questions which arose for determination.
12. The Cause is dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 9th day of November 2018.
Radido Stephen
Judge
Appearances
For Claimant Mr. Khalwale instructed by Khalwale & Co. Advocates
For Respondent Mr. Otieno Omuga/Mr. Omuga instructed by Otieno Omuga & Ouma, Advocates
Court Assistant Lindsey