[2019] KEELRC 2540 (KLR)
The court held that the limitation period for employment claims is three years from the date the cause of action accrues, as provided under section 90 of the Employment Act. The court emphasized that this provision is couched in mandatory terms, leaving no discretion to extend time once the limitation period has...
Source-derived case information.
- Citation
- [2019] KEELRC 2540 (KLR)
- Parties
- Applicant: Julia Wangechi Kariuki (Suing as the administrator of the Estate of Samuel Ndung’u Kariuki, Deceased); Respondent: Armed Forces Canteen Organization
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2366 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Employment Contracts, Jurisdiction, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Wangechi Kariuki (Suing as the administrator of the Estate of Samuel Ndung’u Kariuki, Deceased)
Applicant
Armed Forces Canteen Organization
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has jurisdiction to grant leave to file a suit out of time in employment matters after the limitation period has lapsed.
- 2 Whether the application for leave to file suit out of time constitutes an abuse of court process given the prior determination by the subordinate court.
Ratio Decidendi
The court held that the limitation period for employment claims is three years from the date the cause of action accrues, as provided under section 90 of the Employment Act. The court emphasized that this provision is couched in mandatory terms, leaving no discretion to extend time once the limitation period has expired. Since the issue of limitation had already been raised and upheld in the subordinate court, the present application for leave to file a suit out of time was deemed an abuse of the court process. The court therefore found the application without merit and dismissed it.
Court Disposition
application dismissed
Orders
- The application dated 8th September, 2017 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NO 2366 OF 2017
JULIA WANGECHI KARIUKI Suing as the administrator of the Estate of
SAMUEL NDUNG’U KARIUKI (DECEASED).........................CLAIMANT
VERSUS
ARMED FORCES CANTEEN ORGANIZATION...............RESPONDENT
RULING
1. By application dated 8th September, 2017 the applicant sought leave of court to file a suit out of time. In his submissions in support of the application, Mr Mbaluka for the applicant stated among others that the claimant obtained letters of administration in 2008. The claimant subsequently filed a suit on behalf of the stated Samuel Ndung’u Kariuki being CMCC No. 5577 of 2010 seeking the deceased’s terminal benefits.
2. The suit was part heard as the claimant’s witnesses had testified but when the matter proceeded to defence hearing on 10th August, 2016 the respondent filed a preliminary objection stating that the suit was statute barred by virtue of section 4(1) (a) of Limitation of Actions Act. That court through its ruling delivered on 8th March, 2017 allowed the preliminary objection stating the court had no jurisdiction.
3. From the foregoing it would seem that the issue of limitation had been raised before the subordinate court and upheld by the court. This court as a superior court can therefore only entertain the matter by way appeal from the decision of the subordinate court. The filing of a new application therefore is an abuse of the court process.
4. Section 4(1) (a) of the Limitation of Action Act then as relates to contracts and section 90 of the Employment Act now more specific to employment contracts provides that no claim based on the Act or employment contract generally shall be brought after the expiry of three years from the date of accrual of the cause of action. The section is couched in mandatory terms hence the court does not have jurisdiction to extend time once the same has lapsed.
5. The application dated 8th September, 2017 is therefore found without merit and is hereby dismissed with no order as to costs.
6. It is so ordered.
Dated at Nairobi this 18th day of January 2019
Abuodha J. N.
Judge
Delivered this 18th day of January, 2019
Abuodha J. N.
Judge
In the presence of:-
…………………………………………...…… for the claimant
……………………………………………. for the Respondent
Abuodha J. N.
Judge