[2018] KEELRC 1610 (KLR)
The court held that it lacks jurisdiction to extend the limitation period for employment claims based on contract under Section 90 of the Employment Act. The statutory language is clear and does not provide for judicial discretion to extend time once the prescribed period has expired. The applicant's predicament,...
Source-derived case information.
- Citation
- [2018] KEELRC 1610 (KLR)
- Parties
- Applicant: Kennedy Muli; Respondent: Paper Converters (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 105 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed with costs
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Extension of Time, Employment Termination, Professional Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Muli
Applicant
Paper Converters (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has discretion to extend time to file an employment claim after the limitation period under Section 90 of the Employment Act has lapsed.
- 2 Whether the applicant's circumstances, including alleged professional misconduct by his advocates, justify extension of time.
Ratio Decidendi
The court held that it lacks jurisdiction to extend the limitation period for employment claims based on contract under Section 90 of the Employment Act. The statutory language is clear and does not provide for judicial discretion to extend time once the prescribed period has expired. The applicant's predicament, though unfortunate and possibly attributable to professional misconduct by his advocates, does not create an exception in law. The application for leave to file suit out of time was therefore dismissed as the court's hands are tied by the statutory provisions.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file suit out of time is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
MISC CAUSE NO 105 OF 2017
KENNEDY MULI.....................................................CLAIMANT
VERSUS
PAPER CONVERTERS (K) LIMITED...........RESPONDENT
RULING
1. By a Motion dated 29th August, 2017 the applicant sought leave of the court to file a suit out of time. The application was based on the grounds that the applicant was employed in 1992 and worked until 2010 when the respondent dismissed him. He consequently instructed the firm of Isoe & Nyakua Advocates to take up the matter and represent him.
2. His wife subsequently fell ill in January, 2011 and he had to travel to his rural home to look after her. He however kept following the matter on telephone with the law firm who assured him that the case had been filed and only a hearing date was remaining to be fixed. The applicant however later on came to learn that the matter was never filed in court.
3. The court has ruled severally that the wording of Section 90 of the Employment Act does not appear to grant a Judge the discretion to extend time once the period set by the section has lapsed. Further section 4(1) of the Limitation of Action Act which is the precursor to the section only permits extension of time under section 27 of the Act in respect of actions founded on tort. Actions based on contract must be filed within six years from the date of accrual of cause of action with no room for extension.
4. This period was shortened to three years in respect of claims founded on the Employment Act or contract of employment generally. The application presents an unfortunate case of professional misconduct on the part of the firm of Isoe & Nyakua Advocates for which the applicant should consider lodging a complaint against the law firm with the relevant professional disciplinary body. In law however the Court’s hands are tied hence the orders sought cannot be granted.
5. The application is therefore dismissed with costs.
6. 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