[2017] KEELRC 1823 (KLR)
The court held that it lacks jurisdiction to grant leave to file a suit out of time where the claim is based on contract and the limitation period has expired. The statutory limitation period for employment contract claims is three years under Section 90 of the Employment Act, 2007, and the court has no power to...
Source-derived case information.
- Citation
- [2017] KEELRC 1823 (KLR)
- Parties
- Applicant: Kipkemoi Stanley Cheruiyot; Respondent: The Chairman, B.O.G Sigor High School; Respondent: The Secretary, B.O.G Sigor High School; Respondent: The Treasurer, B.O.G Sigor High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- DKN Marete
- Legal Topics
- Limitation of Actions, Extension of Time, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kipkemoi Stanley Cheruiyot
Applicant
The Chairman, B.O.G Sigor High School
Respondent
The Secretary, B.O.G Sigor High School
Respondent
The Treasurer, B.O.G Sigor High School
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 a suit out of time for a cause of action based on contract arising in 1993.
- 2 Whether the limitation period under Section 90 of the Employment Act, 2007 or the Limitation of Actions Act can be extended for employment contract claims.
Ratio Decidendi
The court held that it lacks jurisdiction to grant leave to file a suit out of time where the claim is based on contract and the limitation period has expired. The statutory limitation period for employment contract claims is three years under Section 90 of the Employment Act, 2007, and the court has no power to extend this period. The applicant's cause of action arose in 1993, and the application for leave was filed in 2016, well outside the statutory limitation period. The authorities cited, including Divecon v Samani and Rift Valley Railways (Kenya) Ltd. v Hawkins Wagunza Musonye & Desidery Tyson Otieno, confirm that courts cannot extend limitation periods for contract-based claims....
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT KERICHO
MISC. APPLICATION NO. 6 OF 2016
(Before D. K. N. Marete)
KIPKEMOI STANLEY CHERUIYOT.....………........................APPLICANT
VERSUS
THE CHAIRMAN..........................................................1ST RESPONDENT
THE SECRETARY........................................................2ND RESPONDENT
THE TREASURER.......................................................3RD RESPONDENT
B.O.G SIGOR HIGH SCHOOL
RULING
This is an application by way of Chamber Summons dated 18th October, 2016 and seeks the following orders of court:-
1. That the applicant/plaintiff be allowed to file a suit against the respondents/defendants out of time as the cause of action arose away back 1993.
2. That this application to be dispensed with in the first instance.
3. Pending the respondents bear the cost of this application.
It is based on the following grounds;
a) That the filing of the suit was delayed due to the communication between the applicant and respondents and the applicant was trying to reach agreement with the respondents amicably.
b) That the applicant will suffer irreparable loss and damages if this application is not allowed.
c) That the applicant seeking order for leave to file the suit out of time.
The application, coming ex-parte is supported by the supporting affidavit of Kipkemoi Stanley Cheruiyot sworn on 18th October, 2016. In this he recites his case of employment by the respondents which was frustrated by a breach of contract on 3rd July, 1983. The applicant has in the meantime engaged the respondent in attempts to resolve the issues without success. This is the causative of his inability to file suit on time and therefore this application for extension of time.
This court’s hands are tied by the authority of Rift Valley Railways (Kenya) Ltd. Vs. Hawkins Wagunza Musonye and Desidery Tyson Otieno where the Court of Appeal sitting at Malindi in the reliance on the authority of Divecon v Samani (1995-1998) I EA 48 at p. 54 observed as follows;
“No one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action. A perusal of Part III shows that its provisions do not apply to actions based on contract.”
This would sail nicely with the current Section 90 of the Employment Act, 2007 which limits time for institutions of suits in this sector to three years.
This application must therefore fail. I am inclined to dismiss it for the foregoing reasons.
Delivered, dated and signed this 31st day of January 2017.
D.K.Njagi Marete
JUDGE
Appearances
1. Claimant in person.