[2017] KEELRC 25 (KLR)
The court found that the claimants' cause of action accrued on 31st December 1999, at which time the Employment Act cap 226 (now repealed) was in force and did not provide a limitation period. Accordingly, Section 4(1) of the Limitation of Actions Act applied, prescribing a six-year limitation period. The claimants...
Source-derived case information.
- Citation
- [2017] KEELRC 25 (KLR)
- Parties
- Respondent: John Walter Otieno; Respondent: Joseph Lwania; Respondent: Joseph Wabushi; Applicant: Kenya Union of Post Primary Education Teachers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 495 of 2014
- Procedural Posture
- Cause / Ruling on Preliminary Objection (limitation of Action)
- Outcome
- claim struck out as statute barred
- Judges
- AN Makau
- Legal Topics
- Limitation of Actions, Employment Contracts, Statutory Time Bars
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Walter Otieno
Respondent
Joseph Lwania
Respondent
Joseph Wabushi
Respondent
Kenya Union of Post Primary Education Teachers
Applicant
Procedural Posture
Cause / Ruling on Preliminary Objection (limitation of Action)
Legal Issues
- 1 Whether the claim filed by the claimants is statute barred under the applicable law.
- 2 Whether the Employment Act cap 226 or the Limitation of Actions Act applies to the claim.
- 3 Whether the court has discretion to extend time for filing employment claims outside the limitation period.
Ratio Decidendi
The court found that the claimants' cause of action accrued on 31st December 1999, at which time the Employment Act cap 226 (now repealed) was in force and did not provide a limitation period. Accordingly, Section 4(1) of the Limitation of Actions Act applied, prescribing a six-year limitation period. The claimants therefore had until 31st December 2005 to file suit. The suit was filed on 30th April 2014, approximately nine years outside the limitation period. The court held that it had no power to extend time for filing such claims, as established by binding precedent. Consequently, the suit was found to be hopelessly time barred and was struck out.
Court Disposition
claim struck out as statute barred
Orders
- The suit is struck out as time barred.
- There is no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 495 OF 2014
JOHN WALTER OTIENO………..………….1ST CLAIMANT/RESPONDENT
JOSEPH LWANIA…………...…................... 2ND CLAIMANT/RESPONDENT
JOSEPH WABUSHI……..……….………….3RD CLAIMANT/RESPONDENT
VERSUS
KENYA UNION OF POST PRIMARY.
EDUCATION TEACHERS...................................RESPONDENT/APPLICANT
RULING
1. The Respondent/Applicant filed the notice of motion seeking to have the memorandum of claim as well as the amended memorandum of claim filed herein to be struck out for the reason that the claim was statute barred. The notice of motion expressed to be under Order 51 Rule 1 of the Civil Procedure Rules 2010 and Section 90 of the Employment Act 2007, is supported by the grounds on the face of it and the affidavit of Maurice Akello Misori sworn on 20th April 2016.
2. The Claimants appearing in person at the time of the motion being disposed of filed in opposition to the notice of motion a document structured in the form of a letter dated 13th October 2017. The Respondent had filed submissions on 25th September 2017. In brief, the Respondent/Applicant asserts that the cause of action arose on 31st December 1999 when the Claimants’ terms of office ended and they raised their demand for payment with the Respondent. The Respondent argues that the Claimants had until 31st December 2002 to file suit as that was the end of the 3 year limitation period imposed by statute. The Respondent relied on the case of Fred Mudave Gogo vG4S Security Services (K) Ltd [2014] eKLRwhere the court held that a claim that does not conform to the mandatory time limitations must fail. The Respondent cited the case of Peter Nyamai &7 Others vJ Clarke Limited [2013] eKLRand argued that the Claimants claim was time barred even if they had resorted to an alternative dispute resolution mechanism as provided for under the Constitution of Kenya or labour laws. The Respondent thus urged that the claim be struck out with costs.
3. The Claimants set out a litany of complaints against the Respondent which they had helped birth in the 1990’s during the regime of President Moi. They articulated the steps the matter had taken in court and concluded that their chances of recovering from the Respondent was nil taking into account the Respondent’s unfair treatment of the Claimants. The Claimants submitted that at the time of the inception of the union, it did not have the capacity to pay their dues but with the revamped membership of over 34,000 members and revenue of Kshs. 35 million per month, the Respondent can now afford to pay their dues.
4. Limitation of a cause of action depends on the time constraints imposed by statute. The claim herein is predicated on occurrences in December 1999. To be precise, 31st December 1999 is when the cause of action accrued. At the time, the Employment Act 2007 was not in force and therefore the law applicable law is the Employment Act cap 226 (now repealed). The Employment Act in force at the material did not provide for a time limit and the law thus applicable is Section 4(1) of the Limitation of Actions Act. It provided for 6 years. From 31st December 1999, the Claimants had until 31st December 2005 to file a suit. This suit was filed on 30th April 2014 some 15 or so years later which is 9 years outside the limitation period. In the case of David Ngugi Waweru v Attorney General & Another [2017] eKLRthe Court of Appeal (Waki, Nambuye, Kiage JJA) held that limitation of actions under Section 4(1) of the Limitation of Actions Act do not contemplate extension and that there is no room to extend time regardless of the sympathy a court may have to a party before it. Sadly, in this case, the founders of KUPPET are languishing in poverty and there is nothing the court can do to extend time to enable them to pursue their remedies. Perhaps their hopes lie on the negotiating skills they possess to get the current crop of officials to pay them their dues since they too will retire some day and will want to be dealt a fair hand as well. The suit is hopelessly time barred and it is struck out. There is no order as to costs.
It is so ordered.
Dated and delivered at Nairobi this 4th day of December 2017
Nzioki wa Makau
JUDGE