[2018] KEELRC 2450 (KLR)
The court held that the claim was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act 2007. The court found that the Employment and Labour Relations Court is not regulated by the Civil Procedure Rules for purposes of limitation, and that Order 50 does not provide for...
Source-derived case information.
- Citation
- [2018] KEELRC 2450 (KLR)
- Parties
- Claimant: John Musambi Mutisya; Respondent: Mash Bus Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 813 of 2016
- Procedural Posture
- Employment Cause / Preliminary Objection Ruling
- Outcome
- claim dismissed for want of jurisdiction
- Legal Topics
- Limitation Periods, Unfair Termination, Computation of Time
- 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
John Musambi Mutisya
Claimant
Mash Bus Services Limited
Respondent
Procedural Posture
Employment Cause / Preliminary Objection Ruling
Legal Issues
- 1 Whether the claim was filed within the limitation period prescribed by Section 90 of the Employment Act 2007.
- 2 Whether Sundays and public holidays should be excluded in computing the limitation period for employment claims.
- 3 Whether the court has jurisdiction to entertain a claim filed outside the statutory limitation period.
Ratio Decidendi
The court held that the claim was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act 2007. The court found that the Employment and Labour Relations Court is not regulated by the Civil Procedure Rules for purposes of limitation, and that Order 50 does not provide for exclusion of Sundays and public holidays in the computation of the three-year period. The statutory limitation is jurisdictional and cannot be extended by procedural rules. The term 'year' is to be interpreted as a calendar year, and the exclusion of days applies only to periods not exceeding six days. Therefore, the claim was time-barred and the court lacked jurisdiction to entertain...
Court Disposition
claim dismissed for want of jurisdiction
Orders
- The claim is dismissed preliminarily for want of jurisdiction under Section 90 of the Employment Act 2007.
- 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 MOMBASA
CAUSE NUMBER 813 OF 2016
BETWEEN
JOHN MUSAMBI MUTISYA ………………….. CLAIMANT
VERSUS
MASH BUS SERVICES LIMITED ………… RESPONDENT
RULING
1. The Claimant filed his Statement of Claim on 13th October 2016. He states he was employed by the Respondent around December 2005 as a Bus Conductor. His last salary was Kshs. 7,500. His contract was terminated by the Respondent in December 2012. He complains this was done without notice and just cause. He prays the Court to grant him against the Respondent, compensation for unfair termination and terminal dues.
2. The Respondent filed its Statement of Response on 28th November 2016. Its position is that the Claimant deserted duty in December 2012. Termination in any event occurred in December 2012. It is not until 13th October 2016, that the Claimant filed Claim. The Claim is time-barred under Section 90 of the Employment Act 2007.
3. Parties agreed to have Preliminary Objection considered and decided on the strength of the record. They confirmed the filing of their Submissions on 1st November 2017.
4. The Parties agree on the date of termination, and on the date of filing of the Claim. They agree there is a 3 year-limitation imposed by Section 90 of the Employment Act, on the filing of Claims such as the one filed by the Claimant herein.
5. The Claimant submits however that all Sundays, and Public Holidays, are excluded from the 3 year period. In his estimation, 84 days every year, translating to 222 days in 3 years, ought to be excluded in computing the time within which he presented his Claim. He cites Order 50 of the Civil Procedure Rules.
The Court Finds:-
6. The Claim was filed way beyond 3 year- limitation period, imposed under Section 90 of the Employment Act 2007. The proceedings of the Employment & Labour Relations Court are not regulated by the Civil Procedure Rules.
7. Even were they so regulated, there is nothing in Order 50 of the Civil Procedure Rules, to suggest the Court can interfere with Section 90 of the Employment Act, by stretching the period of 3 years, to accommodate late filings. This limitation law is a jurisdictional law, which cannot be interfered with, by procedural rules. The immutable nature of time limits is stated in the Kenya Court of Appeal Decision, Divecon v. Samani [1995-1998] EA 48. The Claimant in any event, did not make any application under Order 50, for extension of time, to enable the Respondent answer to such a plea for extension, and enable the Court, to explore in depth, the legal validity of the Claimant’s proposition on applicability of Order 50.
8. The submission that 222 ought to be excluded in computation of time is flawed. Section 90 of the Employment Act 2007 makes reference to 3 years, without qualification. It does not refer to days that should be excluded in counting the years.
9. The term ‘year’ is not defined in the Employment Act 2007. Section 3 of the Interpretation and General Provisions Act Cap 2 the Laws of Kenya, defines the term ‘year’ to mean a year reckoned according to the British Calendar.
10. This is the 365 –day Calendar in use in Kenya. 3 years’ limitation under Section 90 of the Employment Act 2007, in the understanding of the Court, is based on the Calendar year. In computation of time under the Interpretation and General Provisions Act, there are excluded days. These include Sundays, Public Holidays or all Official Non-Working Days. Section 57 [d] states where an act or proceeding is directed, or allowed to be done or taken within any time not exceeding 6 days, excluded days shall not be reckoned in the computation of time. Exclusion applies over a limited period, not exceeding 6 days. Excluded days cannot fail to be reckoned in computation of the 3 year –limitation period, under Section 90 of the Employment Act 2007.
11. The Claimant is therefore incorrect in his deduction of certain days from the Calendar year, to justify his late filing of the Claim.
IT IS ORDERED:-
a. The Claim is dismissed preliminarily for want of jurisdiction under Section 90 of the Employment Act 2007.
b. No order on the cost.
Dated and delivered at Mombasa this 15th day of February 2018.
James Rika
Judge