[2019] KEELRC 106 (KLR)
The court found that the cause of action arose on 5th December 2013 and the suit was filed on 7th December 2016, exceeding the three-year limitation period prescribed by Section 90 of the Employment Act. The claimant did not seek or obtain an extension of time prior to filing the suit, nor were any reasons advanced...
Source-derived case information.
- Citation
- [2019] KEELRC 106 (KLR)
- Parties
- Claimant: John Maleche Opanga; Respondent: Kibos Sugar and Allied Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 356 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit struck out for want of jurisdiction
- Judges
- MN Nduma
- Legal Topics
- Limitation Periods, Unlawful Termination, Service Gratuity, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maleche Opanga
Claimant
Kibos Sugar and Allied Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the suit is time-barred under Section 90 of the Employment Act.
- 2 Whether the court has jurisdiction to entertain the claim filed after the statutory limitation period.
Ratio Decidendi
The court found that the cause of action arose on 5th December 2013 and the suit was filed on 7th December 2016, exceeding the three-year limitation period prescribed by Section 90 of the Employment Act. The claimant did not seek or obtain an extension of time prior to filing the suit, nor were any reasons advanced for the delay. Established jurisprudence, including the Court of Appeal decision in the Devicon case, holds that courts lack jurisdiction to entertain employment claims filed outside the statutory limitation period and have no authority to extend time after the expiry of three years. Consequently, the court determined it lacked jurisdiction to hear the matter and struck out the...
Court Disposition
suit struck out for want of jurisdiction
Orders
- The suit is struck off for want of jurisdiction.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 356 OF 2016
(Before Hon. Justice Mathews N. Nduma)
JOHN MALECHE OPANGA........................................................CLAIMANT
VERSUS
KIBOS SUGAR AND ALLIED INDUSTRIES LIMITED.....RESPONDENT
JUDGMENT
1. This suit was filed on 7th December 2016. The claim arises from termination of employment of the claimant by the respondent on 5th December 2013. The claimant prays for:
i. Payment of service gratuity calculated at 20 days salary for each completed year of service.
ii. Three months salary in lieu of notice and
iii. Maximum compensation for unlawful termination of employment.
2. The claimant testified in support of the claim under oath. The respondent did not call any witness but filed submissions in which is raised a preliminary objection to witthat the suit is time barred by dintof Section 90 of the Employment Act, Cap 226 Laws of Kenya in that the suit was filed upon expiry of three (3) years from the date the cause of action arose.
3. The court is bound to consider this preliminary objection before delving into the merits of the case as it goes to the jurisdiction of the court to entertain the matter on the merits at all.
4. From the unchallenged pleadings by the claimant, the cause of action arose on 5th December 2013 and the suit was filed on 7th December 2016. A simple calculation reveals that the suit was filed three (3) years and two (2) days from the date the cause of action arose. The claimant did not file an application for extension of time prior to the filing of the suit and therefore no reasons have been advanced by the claimant for the late filing of the suit.
5. It is now trite following the Court of Appeal decision in Devicon case and a Myriad of Court of Appeal and E&LRC decisions that the court lacks jurisdiction to entertain a suit that has been filed upon expiry of three (3) years from the date the cause of action arose. The courts have also held that the court lacks authority to extend time of filing a suit based on contract of employment upon expiry of the three years period.
6. Accordingly, this court lacks jurisdiction to determine the merits of this suit. The suit is therefore struck off for want of jurisdiction with no order as to costs.
Judgment Dated, Signed and delivered this 9th day of December, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Nyanga for claimant
Mr. Olel for Respondent
Chrispo – Court Clerk