[2016] KEELRC 937 (KLR)
The court found that the claim was filed well outside the three-year limitation period prescribed by Section 90 of the Employment Act, 2007, as the cause of action arose on 22nd October 2010 and the claim was filed on 19th March 2015. The court reaffirmed that it lacks jurisdiction to extend the limitation period...
Source-derived case information.
- Citation
- [2016] KEELRC 937 (KLR)
- Parties
- Applicant: Justus Ochido Ope; Respondent: Kenyatta University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 430 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out for want of jurisdiction due to limitation of time
- Judges
- L Ndolo
- Legal Topics
- Limitation of Actions, Jurisdiction of Court, Unfair Termination, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Ochido Ope
Applicant
Kenyatta University
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is barred by limitation of time under Section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to entertain a claim filed outside the statutory limitation period.
- 3 Whether leave granted ex parte to file suit out of time precludes a preliminary objection on limitation.
Ratio Decidendi
The court found that the claim was filed well outside the three-year limitation period prescribed by Section 90 of the Employment Act, 2007, as the cause of action arose on 22nd October 2010 and the claim was filed on 19th March 2015. The court reaffirmed that it lacks jurisdiction to extend the limitation period for claims under the Employment Act, as established in prior case law. Furthermore, the fact that leave to file out of time was granted ex parte does not preclude the respondent from raising a preliminary objection on limitation. Consequently, the court held that it had no jurisdiction to entertain the claim and struck it out.
Court Disposition
claim struck out for want of jurisdiction due to limitation of time
Orders
- The Claimant’s claim is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO 430 OF 2015
JUSTUS OCHIDO OPE...............................................................CLAIMANT
VS
KENYATTA UNIVERSITY........................................................RESPONDENT
RULING
1. This ruling flows from a preliminary objection raised by the Respondent by notice dated 12th May 2016. The objection is based on the following grounds:
a. That the Claimant’s claim is misconceived, raises no reasonable cause of action and is an abuse of the court process;
b. That the Claimant’s claim is barred by limitation of time as stipulated under Section 90 of the Employment Act;
c. That the Court has no jurisdiction to entertain the Claimant’s claim which ought to be struck out with costs.
2. When the parties appeared before me on 16th May 2016 they agreed to proceed by way of written submissions.
3. In its submissions filed on 6th June 2016, the Respondent submits that the Claimant filed a claim for unfair termination on 19th March 2015, citing his termination date as 22nd October 2010.
4. On his part the Claimant submits that the objection raised by the Respondent is misconceived as the claim was filed pursuant to leave granted by the Court on 19th February 2015.
5. It is the Claimant’s case that this Court cannot interfere with the leave already granted.
6. The Respondent’s objection is based on Section 90 of the Employment Act, 2007 which provides that:
Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of thisAct 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. Jurisprudence on limitation of claims falling under the Employment Act, 2007 is now fairly well developed. In Maria Machocho v Total Kenya Limited [2013] eKLRRadido Jheld that this Court has no jurisdiction to extend time for filing of claims falling under the Employment Act, 2007. I held the same in George Hiram Ndirangu v Equity Bank [2015] eKLR.
8. The Claimant drew the attention of the Court to an order made by Wasilwa J on 19th February 2015 by which he was granted leave to file suit after the limitation period.
9. This order was however granted ex parte and as held by the Court of Appeal inMary Wambui Kabugu v Kenya Bus Services Ltd (Civil Appeal No 195 of 1995)leave granted ex parte does not bar a party from raising an objection on the same issue on which the leave was granted. This is what the Respondent has done and the Court must hear them.
10. The Claimant was dismissed on 22nd October 2010 and his claim which is subject to the Employment Act, 2007 ought to have been filed not later than 21st October 2013. The claim filed on 19th March 2015 was therefore way out of time and this Court has no jurisdiction to extend time nor entertain the claim.
11. The result is that the Claimant’s claim is struck out with no order for costs.
12. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF JULY 2016
LINNET NDOLO
JUDGE
Appearance:
Mr. Ogutu for Claimant
Mr. Wetangula for the Respondent