[2015] KEELRC 461 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 453 OF 2013

JOSEPH THUKU MUCHIRA ……………...................………………CLAIMANT

VERSUS

CHAI CO-OPERATIVE SAVINGS & CREDIT LTD………………RESPONDENT

RULING

1. The claimant, Joseph Muchina filed suit on 3rd April 2013. In reply the Respondent filed their Notice of Preliminary Objections on 6th November 2013 on the grounds that;

This suit is statute barred pursuant to section 90 of the Employment Act, Cap 226, and Laws of Kenya.

This court has no jurisdiction to preside over and or determine the issues raised in this suit.

This suit is unsustainable in law, it is a non-starter, incurably defective, a substantive and procedural monumental nullity and an unmitigated abuse of the court process.

2. On 10th March 2014, both parties agreed to file their written submissions with regard to the preliminary objections. On 2nd April 2014 when the parties were to attend court and confirm filing and be allocated a ruling date, the Claimant was absent. The Respondent took new dates and served the Claimant for attendance on 21st September 2015 and despite such service, the Claimant was absent.

3. The Respondent filed written submissions on 21st march 2014.

4. The Respondent submitted that the Claimant was an employee of the Respondent but was terminated on grounds of misconduct on 15th September 2008 and filed suit on 4th april2013 over a claim of unfair termination and unpaid terminal dues. The claim being based on an employment contract is time barred. A plea of limitation being a point of law should be determined instantly as under the principles in Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors ltd [1969] EA, 969.

5. The Respondent thus submitted that the Employment Act came into force on 2nd June 2008 and the cause of action arose on 15th September 2008 hence the claim falls under the provisions of the Employment Act, 2007. Section 90 is mandatory and any claim under the Act must be filed before this court within 3 years as held in Fred Mudave Gogo versus G4S Security Services (K) Ltd [2014] eklrwhere the court held that the Claimant had been terminated but filed suit when time had already laps. In this case, the alleged issue in dispute is clear in that it stems from wrongful termination and time has lapsed for filing such a claim. This suit should thus be dismissed with costs.

Determination

6. Upon notification of the preliminary objections, the Claimant did not file any responses or offer anything in submissions. This being an issue of law that the Respondent has raised, it is important for the court to interrogate it.

Section 90 of the Employment Act states,

Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.

7. These provisions are mandatory as held in the case of Maria Machocho versus Total Kenya Limited, Misc. Civil Cause No. 2 of 2012where the court held that an express provision of the law cannot be circumvented by any other provision. In Meshack Angeng’o Omondi versus Eldoret Municipal Council & Another, Cause No. 15(N) of 2010the court held that the suit was statute barred having been filed 6 years after the cause of action arose.

8. In the memorandum of claim filed by the Claimant on 3rd April 2013, the issues in dispute in the claim are that he was unlawfully terminated and not paid his terminal dues. That the Claimant was an employee of the Respondent from 7th May 1990 to 15th September 2008 when he was terminated. Arising from the termination, the Claimant is seeking compensation and terminal benefits.

9. The claim therefore being one based on employment and labour relations and claims based on the provisions of the Employment Act, section 90 Apply with regard to computation of time within which the Claimant should have filed it in court. Section 90 of the Employment Act, 2007 gives the Respondent a defence which has been raised in the preliminary objections that by application of section 90 of the Employment Act, the suit is time barred. Section 90 does not create discretion to extend time that has lapsed based on the Limitations of Actions Act and the Employment Act, 2007 provisions.

10. The Question of limitation of time to file suit has been gone into by the court in several cases and as cited in the case of Alexander Mugambi Nguruthi versus Chogoria Farmers’ Co-operative Society Ltd [1986], Misc. Appli. No. 17 of 2013that;

… in the Court of Appeal decision inDivecon v Samani (1995-1998) EA 48… Even though the case was based on tort; the Court of Appeal mentioned that the trial Court had found that the cause of action was founded on both tort and contract. The Court of Appeal nevertheless went ahead to consider the grant of leave or extension of time in respect of causes of action based on contract and held 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 done namely, 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 invoked’’. [Emphasis added].

11. The court went on to assess the above decision of the Court of Appeal thus;

…the trial judge erred in holding that the wording of section 4(1) of the Limitation of Actions Act implied that a Court had the discretion to extend time in deserving cases regarding actions in contract. The words of section 4(1) were clear beyond any doubt and meant that no one had the right or power to bring an action founded on contract after the end of six years from the date on which the cause of action accrued….

12. In this case, noting the cause of action arose on 15th September 2008 and the suit herein was filed on 3rd April 2013, this is after a period of over 4 ½ years after the fact of termination. To file the claim thus after the lapse of 3 years offends the mandatory provisions of section 90 of the Employment Act. Such suit must fail.

The objections raised are hereby upheld and the suit dismissed. Costs to the respondent.

Delivered, dated and signed in open Court at Nairobi this 30th Day of September 2015.

M. Mbaru

JUDGE

In the presence of:

Court Assistant……………………

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