[2019] KEELRC 228 (KLR)
The court found that the Claimant's cause of action, being his indefinite suspension without pay, arose in December 2004. Under Section 4(1) of the Limitation of Actions Act, actions founded on contract must be brought within six years from the date the cause of action accrues. The claim was filed in November 2017,...
Source-derived case information.
- Citation
- [2019] KEELRC 228 (KLR)
- Parties
- Claimant: Julius Gikonyo Mwangi; Respondent: National Water Conservation and Pipeline Corporation; Respondent: Coast Water Services Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 886 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out as time barred
- Judges
- L Ndolo
- Legal Topics
- Limitation of Actions, Employment Contracts, Unfair Suspension
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Gikonyo Mwangi
Claimant
National Water Conservation and Pipeline Corporation
Respondent
Coast Water Services Board
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time barred under Section 4(1) of the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to entertain a claim filed outside the statutory limitation period.
Ratio Decidendi
The court found that the Claimant's cause of action, being his indefinite suspension without pay, arose in December 2004. Under Section 4(1) of the Limitation of Actions Act, actions founded on contract must be brought within six years from the date the cause of action accrues. The claim was filed in November 2017, thirteen years after the accrual of the cause of action, far outside the statutory limitation period. The court cited binding authority confirming that the limitation period is absolute and cannot be extended by the court. Consequently, the court held that it lacked jurisdiction to entertain the claim and struck it out as time barred.
Court Disposition
claim struck out as time barred
Orders
- The claim is struck out for being time barred under Section 4(1) of the Limitation of Actions Act.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA
CAUSE NO 886 OF 2017
JULIUS GIKONYO MWANGI.................................................CLAIMANT
VS
NATIONAL WATER CONSERVATION
AND PIPELINE CORPORATION................................1ST RESPONDENT
COAST WATER SERVICES BOARD..........................2ND RESPONDENT
RULING
1. This ruling is triggered by a preliminary objection taken by the 1st Respondent by notice dated 3rd January 2018. The substance of the objection is that the Claimant’s claim filed on 27th November 2017 is time barred by dint of Section 4(1) (a) and 4(3) of the Limitation of Actions Act, Cap 22, Laws of Kenya.
2. At the court appearance of 30th July 2019, the parties agreed to dispense with the preliminary objection by way of written submissions. However, only the 1st Respondent complied with these directions.
3. The 1st Respondent submits that the cause of action herein having arisen in the year 2004, the Claimant’s claim filed on 29th November 2017 was way out of time.
4. By his Memorandum of Claim dated 27th November 2017 and filed in court on the same date, the Claimant seeks a declaration that his indefinite suspension without pay is unfair, unjustified and unlawful.
5. At paragraph 2 of the Memorandum of Claim, the Claimant pleads December 2004 as the effective date of the said indefinite suspension. This in my view is what constitutes the cause of action as defined by the Court of Appeal in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, being the act that caused the Claimant to complain.
6. The cause of action having arisen in 2004, the applicable limitation law is Section 4(1) of the Limitation of Actions Act. This provision provides that actions founded on contract cannot be brought after the lapse of six years from the accrual date.
7. The controlling authority on Section 4(1) of the Limitation of Actions Act is Divecon Ltd v Samani (1995-1998) EA where the Court of Appeal affirmed that the limitation period of six years set out in Section 4(1) of the Act is absolute and no court has power to extend it.
8. In this case, the time lapse between accrual of the cause of action and the filing of the Claimant’s claim in court is thirteen years. The claim is clearly out of time and I have no jurisdiction to entertain it. For that reason, I strike it out with no order for costs.
9. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 5TH DAY OF DECEMBER 2019
LINNET NDOLO
JUDGE
Appearance:
Mr. Shijenje for the Claimant
Mr. Wabuyabo for the 1stRespondent
No appearance for the 2nd Respondent