[2018] KEELRC 1595 (KLR)
The court found that the claim was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act. The cause of action accrued on 8th July, 2010, when the claimant was notified of the decision on his appeal against dismissal. The claim was filed on 25th February, 2016, which is well...
Source-derived case information.
- Citation
- [2018] KEELRC 1595 (KLR)
- Parties
- Claimant: Joseph Charles Mboko; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 281 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out as incompetent with costs to the respondent
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Employment Contracts, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Charles Mboko
Claimant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim was filed outside the limitation period prescribed under Section 90 of the Employment Act.
- 2 Whether the court has discretion to extend time for filing employment claims beyond the statutory period.
Ratio Decidendi
The court found that the claim was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act. The cause of action accrued on 8th July, 2010, when the claimant was notified of the decision on his appeal against dismissal. The claim was filed on 25th February, 2016, which is well beyond the statutory period. The court held that it has no discretion to extend the limitation period under Section 90, as established by both statutory provision and binding precedent. Consequently, the preliminary objection was upheld and the claim was struck out as incompetent.
Court Disposition
claim struck out as incompetent with costs to the respondent
Orders
- The claim is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA AT NAIROBI
CAUSE NO 281 OF 2016
JOSEPH CHARLES MBOKO..................................................................CLAIMANT
VERSUS
TEACHERS SERVICE COMMISSION.............................................RESPONDENT
RULING
1. The respondent herein raised a preliminary objection to the claim herein to the effect that the claim has been filed outside limitation period provided for under Section 90 of the Employment Act.
2. In support of this contention counsel for the respondent relied on the Court of Appeal’s decision in Divecon Vs Samani [1995-1998] 1EA 48where that court held that extension of time to file suit out of time in not available for suits founded on contract. It was therefore unacceptable for the superior court Judge to imply that the wording of section 4(1) of the Limitation of Actions Act suggested a discretion that can be invoked.
3. Counsel further relied on section 90 of the employment Act which bars the filing of any action based on the Act or contract of employment generally after expiry of three years from the date of accrual of the cause of action.
4. This court has severally upheld that the wording of section 90 does not appear to give it the discretion to extend the period for filing suit once time prescribed by the Act has expired.
5. Counsel for the claimant did not address herself to this important question of law. Counsel instead spent time attacking the merits of the reasons for her client’s dismissal and only said of the objection that the same was being brought to defeat the cause of justice. The claimant was dismissed from service on 24th March, 2010.
6. He appealed against the dismissal and the decision refusing his appeal communicated to him by a letter dated 8th July, 2010. Arithmetically therefore the claim herein ought to have been filed on or before 8th July, 2013. The claim was however filed on 25th February, 2016 which is way outside the three year period prescribed by the Employment Act.
7. In conclusion the court upholds the preliminary objection and hereby strikes out the claim as incompetent with costs to the respondent.
8. It is ordered.
Dated at Nairobi this 6th day of July, 2018
ABUODHA J. N.
JUDGE
Delivered at Nairobi this 6th day of July, 2018
ABUODHA J. N.
JUDGE
In the presence of:-
........................................for the Claimant
....................................for the Respondent