[2024] KEELRC 2743 (KLR)
The court held that Section 90 of the Employment Act is explicit in barring any civil action or proceedings based on employment contracts unless commenced within three years of the act complained of. The jurisprudence from both the Employment and Labour Relations Court and the Court of Appeal, particularly in...
Source-derived case information.
- Citation
- [2024] KEELRC 2743 (KLR)
- Parties
- Applicant: David Gikandu Kieha; Respondent: Konifaf Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 270 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Limitation Periods, Leave to File Out of Time, Employment Termination, Statutory Bar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Gikandu Kieha
Applicant
Konifaf Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court can grant leave to file an employment claim outside the statutory limitation period under Section 90 of the Employment Act.
- 2 Whether there is judicial discretion to extend time for filing employment-related claims.
Ratio Decidendi
The court held that Section 90 of the Employment Act is explicit in barring any civil action or proceedings based on employment contracts unless commenced within three years of the act complained of. The jurisprudence from both the Employment and Labour Relations Court and the Court of Appeal, particularly in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, confirms that there is no judicial discretion to extend this limitation period. As the applicant's claim was admittedly statute barred and the law provides no avenue for extension, the application for leave to file suit out of time was dismissed as lacking merit.
Court Disposition
application dismissed
Orders
- The application dated 27th September 2023 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Kieha v Konifaf Company Limited (Miscellaneous Application 270 of 2023) [2024] KEELRC 2743 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEELRC 2743 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Miscellaneous Application 270 of 2023
L Ndolo, J
November 7, 2024
[FORMERLY HIGH COURT MISCELLANEOUS APPLICATION NO E924 OF 2023]
Between
David Gikandu Kieha
Applicant
and
Konifaf Company Limited
Respondent
Ruling
1. By his application dated 27th September 2023, the Applicant seeks leave to file suit against the Respondent out of time. The application is supported by the Applicant’s own affidavit and is based on the grounds that:a.The time for filing of the suit has lapsed;b.Grant of leave is necessary;c.There has not been inordinate delay in bringing the application.
2. In his affidavit in support of the application, the Applicant states that he worked for the Respondent between 2001 and 2012. He claims to have been arrested on 5th September 2012 and subsequently charged with the offence of stealing by servant. He adds that he was acquitted on 30th January 2014.
3. According to the Applicant, he reported to work on 8th September 2012 but found that he had been replaced. By the Applicant’s own admission, his claim is statute barred. The relevant provision in this regard is Section 90 of the Employment Act, which states as follows:90. 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.
4. The question whether the Court can extend time in employment related claims has been decisively resolved by both this Court and the Court of Appeal. In Attorney General & another v Andrew Maina Githinji & another [2016] eKLR the Court of Appeal affirmed that Section 90 of the Employment Act does not leave any room for discretion to extend time in employment claims.
5. In light of this clear jurisprudence, there is nothing more to say. The application dated 27th September 2023 is without merit and is dismissed with no order for costs.
6. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF NOVEMBER 2024LINNET NDOLOJUDGEAppearance:Mr. Seda for the ApplicantNo appearance for the Respondent